After disturbing revelations last year that the Department of Justice was treating the privacy of U.S. citizens with the disdain it once reserved for enemies of the state, hopes were briefly raised that Congress would finally get around to legislating some long overdue protections for journalists. Sen. Chuck Schumer (D-NY) recently announced that the Senate has the votes to pass a media shield law to do so. Unfortunately, Sen. Schumer’s bill, the Free Flow of Information Act (FFIA), falls disappointingly short.
FFIA is very similar to media shield laws that already exist in 48 states. These laws limit the government’s ability to extract information from journalists who refuse to disclose their sources. Even where Schumer’s bill makes exceptions, it still ensures that the burden of proof rests with the government, and that the case has to go before a federal judge. Journalists theoretically would have a chance to defend themselves in court.
But although FFIA appears to protect reporters’ First Amendment rights, in reality it creates an unnecessary, arbitrary barrier between them. The bill defines “covered journalists” very specifically. It focuses on a journalist’s wage, affiliated organization, and history of earlier publications. Importantly, it excludes anyone who primarily uses blogging and social media to distribute news. It enshrines the technology of journalism that predominated a decade ago, completely ignoring the modern ways that people consume news.
Journalism isn’t a profession, but rather an act of presenting facts to the public — drawing on observation and research. As technology and culture changes, so do the channels of reporting. Someone who works during the day as a mechanic or a salesman should receive the same protections for the independent journalism they do in the evening as a reporter who gets paid for it — so long as they produce journalistic content and uphold the same ethical standards. Freedom of the press is not a lynchpin of democratic society because it protects salaried, established journalists. It matters because it protects the act of journalism, the revelation and discussion of facts and issues vital to the public interest, as determined by the public itself.
Not only does the bill fail protect the work of citizen journalists, it offers very little help to those professional journalists in need of it most. Schumer admitted that the FFIA would “probably not [offer] enough protections” to cover Glenn Greenwald, the former Guardian journalist who made waves reporting on the federal court order that required Verizon to hand over phone records to the NSA.The controversy generated by his reporting helped provoke the calls for federal shield laws in the first place — but FFIA wouldn’t cover him.
Congress would serve the American people much better by protecting journalistic activities — the research and recording of notes and information with the intent to publish, and the actual act of presenting it to the public. These actions are universal and easy to discern, and do not rely on arbitrary parameters.
The FFIA makes media outlets dependent on Congressional favor in order to continue to exist in their current form. This cuts against the very nature of journalism, which has always thrived on its informality and private agreements.
Under FFIA, the federal government would begin to absorb the authority to make these arrangements. Already the government grants privileged access to its press conferences and media rooms. It’s not a far stretch to imagine that, in the name of security, it would try to turn reporting into a tightly regulated and licensed industry.
Jason Stverak is President of the Franklin Center for Government and Public Integrity.