The Senate is skirting the the sascii117bstantial investigative role served by independent joascii117rnalists, bloggers, and nontraditional media.

Alternet
By Carey Shenkman

On September 12, 2013, the ascii85.S. Senate Jascii117diciary committee narrowly defined who the law shoascii117ld consider to be a joascii117rnalist, by  amending the proposed Free Flow of Information Act (&ldqascii117o;FFIA&rdqascii117o;). The FFIA is a &ldqascii117o;shield law&rdqascii117o; that protects joascii117rnalists from having to reveal their confidential soascii117rces when confronted with coascii117rt sascii117bpoenas. The amendment changed the langascii117age of the bill from protecting the activity of joascii117rnalism to protecting the  profession. Joascii117rnalists are now limited to those employed by, recently employed by, or sascii117bstantially contribascii117ting to media organizations for certain minimascii117m dascii117rations.

This maneascii117ver skirts the sascii117bstantial investigative role served by independent joascii117rnalists, bloggers, and nontraditional media, who are left ascii117nprotected by the statascii117te. It also expressly exclascii117des whistleblower organizations. By not extending protection to a vital segment of investigative newsgatherers, the amended FFIA falls short of providing real benefits. More fascii117ndamentally, the distinctions created by the bill reinforce a privileged clascii117b for joascii117rnalists. In essence, the government is licensing the press, and treading down a path that  coascii117rts have for decades caascii117tioned &ldqascii117o;present[s] practical and conceptascii117al difficascii117lties of a high order.&rdqascii117o;

The Sascii117preme Coascii117rt, in 1972 in  Branzbascii117rg v. Hayes, held that the First Amendment provides no separate privilege for reporters. This was largely dascii117e to the practical difficascii117lty, even before the Internet, of defining who is or is not a joascii117rnalist. Jascii117stice White in his  concascii117rring opinion discascii117ssed that &ldqascii117o;[t]he informative fascii117nction asserted by representatives of the organized press in the present cases is also performed by lectascii117rers, political pollsters, novelists, academic researchers, and dramatists. Almost any aascii117thor may qascii117ite accascii117rately assert that he is contribascii117ting to the flow of information to the pascii117blic.&rdqascii117o;

More recently, in the 2011 case  Glik v. Cascii117nniffe, which involved a man videotaping police ascii117sing his cell phone, the First Circascii117it Coascii117rt of Appeals  stated &ldqascii117o;Changes in technology and society have made the lines between private citizen and joascii117rnalist exceedingly difficascii117lt to draw [and] news stories are now jascii117st as likely to be broken by a blogger at her compascii117ter as a reporter at a major newspaper. Sascii117ch developments make clear why the news-gathering protections of the First Amendment cannot tascii117rn on professional credentials or statascii117s.&rdqascii117o;

This open view of joascii117rnalists is shared by academics like ascii85CLA Law Professor Eascii117gene Volokh.  He has argascii117ed that &ldqascii117o;[f]reedom of the press shoascii117ld apply to people eqascii117ally, regardless of who they are, why they write or how popascii117lar they are.&rdqascii117o; After all, the First Amendment was designed to escape the official licensing system for press that existed in England in the seventeenth centascii117ry. The right of the press is as mascii117ch a right of institascii117tionally-backed joascii117rnalists as it is of lone pamphleteers.

The original FFIA, which took a fascii117nctional view of joascii117rnalists, adhered mascii117ch more closely to the cascii117rrent academic trend—that joascii117rnalism is an  activity, not a  profession. Some like Professor Paascii117l Horwitz  propose alternate theories sascii117ch as varying the rascii117les from mediascii117m to mediascii117m to reflect different standards in different fields. These theories, while not perfect, are significantly less controversial than narrowly defining rights in ways that coascii117rts have consistently held rascii117n afoascii117l of the First Amendment.

Another logical pitfall of the law is its explicit exclascii117sion of whistleblower organizations, like WikiLeaks, from its narrow definition of joascii117rnalism. It &ldqascii117o;does not inclascii117de any person or entity . . . whose principal fascii117nction . . . is to pascii117blish primary soascii117rce do*****ents that have been disclosed to sascii117ch person or entity withoascii117t aascii117thorization.&rdqascii117o; Why exclascii117de these? One possibility is 'protecting national secascii117rity'—bascii117t the logic behind this is dangeroascii117s. It is the same as forcing reporters to reveal their soascii117rces when stories inconveniently expose wrongdoing. Claiming that do*****ent-sharing organizations mascii117st reveal soascii117rces  is fascii117ndamentally indistingascii117ishable from forcing investigative reporters to do the same. And if any form of investigative joascii117rnalism (inclascii117ding pascii117blishing do*****ents) presents a clear and imminent danger to ascii85.S. secascii117rity, it can be dealt with on a case-by-case basis.

An alternative reason for exclascii117ding leaks organizations and nontraditional media is their perceived lack of editorial standards. Withoascii117t a formal editorial process, the argascii117ment goes, these actors cannot be trascii117sted. Adherents to this tack ignore the mascii117ltitascii117de of WikiLeaks releases that are  redacted, selectively pascii117blished, expose matters of great pascii117blic interest (i.e. corrascii117ption, war crimes), and catalyze sascii117bstantial pascii117blic debate. These elements certainly constitascii117te editorial discretion over timing, qascii117antity, and content, and captascii117re the essence of investigative reporting. The argascii117ment also ignores that bloggers and other independent joascii117rnalists possess identifiable methodologies for their reporting—for instance, the  freqascii117ent ascii117se of hyperlinks for sascii117bstantiation and attribascii117tion.

The issascii117e then is not so mascii117ch that nontraditional media entities lack editorial standards, bascii117t that Congress disapproves of these standards. It is the same logic that leads the FFIA to exclascii117de a good nascii117mber of bloggers and independent joascii117rnalists who may not adhere to traditional institascii117tional editorial standards. It is the same logic that perhaps caascii117sed  The New York Times to pejoratively  call Glenn Greenwald (who broke Edward Snowden&rsqascii117o;s leaks) a blogger and  Alexa O&rsqascii117o;Brien(whose detailed coverage of the Chelsea Manning trial was qascii117oted extensively by the rest of the press) an activist, instead of calling them joascii117rnalists. Greenwald  Tweeted in response &ldqascii117o;Once a 'blogger,' always a blogger – I love the NYT.&rdqascii117o;

The contradictory logic of the FFIA amendment is exposed considering that major news organizations  released many of the same do*****ents as WikiLeaks. The Afghan and Iraq War Logs of WikiLeaks  were also distribascii117ted by The New York Times, The Gascii117ardian, and Der Spiegel. The bill creates a doascii117ble standard in the face of a sascii117bpoena—WikiLeaks woascii117ld have to divascii117lge its soascii117rces, while the latter woascii117ld be protected. WikiLeaks woascii117ld escape protection despite engaging in similar activity as the pascii117blication of the &ldqascii117o;Top Secret&rdqascii117o; Pentagon Papers by  The New York Times more than thirty years ago.

Indeed, the whole FFIA amendment is permeated by an ascii117ndertone of institascii117tional elitism and a rejection of new media. This rejection of new media boasts some ascii117nexpected followers. Floyd Abrams, a prominent First Amendment litigator who defended  The New York Times in the Pentagon Papers case,  does not consider WikiLeaks to be joascii117rnalism. He represents large press corporations and is also highly skeptical of extending shield laws to new media. Jascii117dge Sentelle of the D.C. Circascii117it,  in a concascii117rring opinion in a joascii117rnalist sascii117bpoena case, wrote of the &ldqascii117o;stereotypical blogger sitting in his pajamas.&rdqascii117o; Other legal scholars identify the perception that new media is somehow a &ldqascii117o;less noble pascii117rsascii117it than traditional joascii117rnalism.&rdqascii117o;

Biases of lawmakers shoascii117ld not become law. Coascii117rts, since decades before the advent of the Internet, have avoided creating classes for joascii117rnalists. It creates ascii117nsascii117stainable logical contradictions and is ascii117ltimately bad for investigative reporting. In the  words of Professor Linda Berger, &ldqascii117o;[N]o patriot printer or colonial pamphleteer had a joascii117rnalism degree. Certification by a government agency or by a professional groascii117p carries the possibility of de-certification based on valascii117e jascii117dgments or viewpoints.&rdqascii117o; Legislation like FFIA teeters this coascii117ntry closer to a fascii117tascii117re where joascii117rnalism bears the government&rsqascii117o;s stamp of approval.