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Only Real Journalists Allowed
September 17, 2013 11:10 AM   Subscribe


 


Chuck Shumer: “The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those”.

Also: Dianne Feinstein wanted the law restricted to "real reporters" who earn a salary.
posted by anemone of the state at 11:16 AM on September 17, 2013 [2 favorites]


Luckily the number of "real" reporters is declining daily, so soon the government won't have anyone to worry about!
posted by blue_beetle at 11:17 AM on September 17, 2013 [28 favorites]


But the free markets have spoken and we can't afford salaried journalists anymore. I suppose unpaid interns count, though?
posted by saulgoodman at 11:17 AM on September 17, 2013 [1 favorite]


Why not just require journalists to get a license, and withhold licenses from people you don't like?
posted by adamrice at 11:19 AM on September 17, 2013 [17 favorites]


Frozen Flow of Information Act, more like.
posted by oceanjesse at 11:19 AM on September 17, 2013


Publius would disagree.
posted by ChurchHatesTucker at 11:21 AM on September 17, 2013 [2 favorites]


I think it's important to distinguish people who work for newspapers from people actually performing the act of journalism. Those two things are very different these days.
posted by mhoye at 11:23 AM on September 17, 2013 [23 favorites]


The problem with this "but everyone's a journalist!" line is that the whole argument in favor of a special exemption for journalists from being compelled to testify is based on the claim that journalists perform a vital service for the community at large. We are saying, in effect, "because this service is so important and because it will be seriously compromised if journalists are routinely compelled to reveal their sources we will grant journalists a special privilege--one we grant to very few other people, and in all cases to people who have received special training by virtue of their profession about the limits and the ethical obligations of that privilege--to be exempt from a legal obligation to which all citizens are normally subject."

Now, if you say "well, everyone's a journalist!!" because we all have access to the internet, you're then either saying that everybody should be granted this privilege (in other words, how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses, if all they have to do to duck that obligation is say "oh, I was going to tweet about that, so I'm a journalist--sorry") or you're saying that nobody should.
posted by yoink at 11:25 AM on September 17, 2013 [20 favorites]


This should be the first link. Could a mod fix this?
posted by anemone of the state at 11:26 AM on September 17, 2013


[fixed the first link]
posted by jessamyn at 11:28 AM on September 17, 2013


(in other words, how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses, if all they have to do to duck that obligation is say "oh, I was going to tweet about that, so I'm a journalist--sorry")

If you don't actually trust the state to be a just actor - the case as much in your example as that of the journalist revealing his WikiLeaks sources - that doesn't actually seem like a bad thing.
posted by mhoye at 11:30 AM on September 17, 2013 [7 favorites]


The whole mindset is wrongheaded - I mean, the free press helps the gummit as much as hurts it: it is the bully pulpit, just as much as it is the platform for change. A recent bit in NPR pointed out that even in China, dissent expressed on the internet is not quashed by some of the world's most active press censors because they use it to gauge public sentiment in a system otherwise closed to public expression of dissent.
This is why it's so disheartening to see the current crackdown on whistleblowers and leakers - it's working like it should.
posted by eclectist at 11:30 AM on September 17, 2013 [2 favorites]


Should be no shield law. The fact that a private corporation has information relevant to a court case but wants to keep it secret so it can get a scoop and make more money for the private corporation?

No. there should be a balancing test applied by a judge. If you are a victim of a crime or a litigant in a case, sorry Charlie, these corporations want to use their exclusives to make more money and say that because they need to make sure that other people come forward later to them (not to the person who actually needs the help), you cannot have justice.

No way.
posted by Ironmouth at 11:31 AM on September 17, 2013 [2 favorites]


(in other words, how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses, if all they have to do to duck that obligation is say "oh, I was going to tweet about that, so I'm a journalist--sorry")

If you don't actually trust the state to be a just actor - the case as much in your example as that of the journalist revealing his WikiLeaks sources - that doesn't actually seem like a bad thing.


The state? What if you are a criminal defendant and you need that information to prove you are innocent? This is 100% wrong on every level.
posted by Ironmouth at 11:33 AM on September 17, 2013 [1 favorite]


... how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses...

In this case the journalist would be part of the story and I don't think the laws would shield him. If, on the other hand, I run a blog about police abuses and you tell me how they abused you, and I post about it, I should be covered.
posted by cjorgensen at 11:33 AM on September 17, 2013 [2 favorites]


... how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses...

In this case the journalist would be part of the story and I don't think the laws would shield him. If, on the other hand, I run a blog about police abuses and you tell me how they abused you, and I post about it, I should be covered.


What if another party, also harmed by the police in the same incident needs that information for their case?
posted by Ironmouth at 11:35 AM on September 17, 2013


What if you are a criminal defendant and you need that information to prove you are innocent?

How would it matter whether or not you've proved you're innocent if the state is not a just actor?
posted by XMLicious at 11:39 AM on September 17, 2013 [1 favorite]



... how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses...

In this case the journalist would be part of the story and I don't think the laws would shield him. If, on the other hand, I run a blog about police abuses and you tell me how they abused you, and I post about it, I should be covered.

What if another party, also harmed by the police in the same incident needs that information for their case?


Well they likely wouldn't even know about it, because why would the abused person who told me say a word, if they could be compelled to have their information come out?

Yikes, that was a terrible sentence. Let me try again:

Person #1 was harmed by the police in an incident and has a case.
I, a blogger, am Person #2.
Person #3 was harmed by the police in the same incident as #1, no case.

Why would #3 write to me detailing their abuse, if they were aware they could be "outed" or compelled to testify? They wouldn't. So person #1 wouldn't know that they need the information, because there wouldn't be a blog post about an anonymous person.

...unless #1 could subpoena #3 based on their own personal knowledge of #3's involvement regardless of the blog post. Which the media shield law wouldn't change.
posted by Lemurrhea at 11:41 AM on September 17, 2013 [2 favorites]


The principle is not that everybody is a journalist, it's that anybody can be a journalist. You become a journalist by gathering and disseminating information to the public, not by getting a paycheck from a particular corporation.
posted by Longtime Listener at 11:44 AM on September 17, 2013 [4 favorites]


Also: Dianne Feinstein wanted the law restricted to "real reporters" who earn a salary.

When people call DiFi a "bleeding-heart liberal," I just laugh. I wonder how she can breathe, being so deep in the pocket of the media companies?
posted by entropicamericana at 11:45 AM on September 17, 2013 [18 favorites]


You become a journalist by gathering and disseminating information to the public

Great. So you get a subpoena, decide you don't want to testify, go to blogspot.com and write a blog entry and, hey presto, you're a journalist and your communications are privileged? I mean, it's easy to get on one's high horse about "citizen journalists" and the like, but we're talking about granting a very important and rare legal privilege here--one that would be open to abuse by all kinds of people you wouldn't actually like to see granted such a privilege and not just the people you like to think of as champions of free speech--so tell me how you would make a meaningful legal restriction of this privilege so it doesn't just become an automatic "get out of testifying free" card to anyone with a computer, a phone or a notebook.
posted by yoink at 11:49 AM on September 17, 2013 [1 favorite]


Person #1 was harmed by the police in an incident and has a case.
I, a blogger, am Person #2.
Person #3 was harmed by the police in the same incident as #1, no case.

Why would #3 write to me detailing their abuse, if they were aware they could be "outed" or compelled to testify? They wouldn't. So person #1 wouldn't know that they need the information, because there wouldn't be a blog post about an anonymous person.

...unless #1 could subpoena #3 based on their own personal knowledge of #3's involvement regardless of the blog post. Which the media shield law wouldn't change.


OK, let me make the hypo more clear--#1 comes to you anonymously and says they don't want to bring a complaint but they saw #2 beat up by the cops. This makes #1 a witness. You publish, not revealing #1's name. (this is what the shield law is supposed to do, protect you from having to give over #1's name). #2 is suing the department. He needs witnesses who saw it all. His lawyer sends you a subpoena, saying give me the name of #1 so I can have him testify. You deploy the shield law. #2 gets no justice.
posted by Ironmouth at 11:49 AM on September 17, 2013


Person #1 was harmed by the police in an incident and has a case.
I, a blogger, am Person #2.
Person #3 was harmed by the police in the same incident as #1, no case.


If we change person 1 to be a participant in the abuse, who wished to remain anonymous, then things change.
posted by zabuni at 11:51 AM on September 17, 2013


Great. So you get a subpoena, decide you don't want to testify, go to blogspot.com and write a blog entry and, hey presto, you're a journalist and your communications are privileged?

Is it better if you just set up a shell business and do the same thing?
posted by Drinky Die at 11:52 AM on September 17, 2013 [1 favorite]


Don't hate the media, bec[ REDACTED ]
posted by delfin at 11:54 AM on September 17, 2013 [2 favorites]


Great. So you get a subpoena, decide you don't want to testify, go to blogspot.com and write a blog entry and, hey presto, you're a journalist and your communications are privileged?

You can do better than that. You could suggest a history of journalistic activity rather than a future potential of journalism, or a citation system, there are myriad good solutions to this.
(Of course the reality is that any good solution would result in Wikileaks being considered journalistic, so good solutions are being actively avoided by the senate)
posted by anonymisc at 11:55 AM on September 17, 2013 [10 favorites]


who have received special training by virtue of their profession about the limits and the ethical obligations of that privilege--to be exempt from a legal obligation to which all citizens are normally subject."

But there's nothing in law to guarantee professional journalists actually are specially trained or bound by any extra ethical obligations anymore, if there ever was. Basically, you could be a paid shill for some corporate PR outfit branded as an "independent news outlet" and you'd enjoy special privileges under this definition, despite lacking any of the qualifying characteristics associated with professional journalism, while someone independently blowing the whistle on a big story on the internet, even if doing so genuinely was in the public interest, would enjoy none of those protections. I'm leaning toward Ironmouth's take on this. Why should anyone enjoy these extra privileges. It'd be different if journalism was still mostly practiced by serious, credentialed professionals in the public interest. But we know that's not the case. Most media companies have made it plain that their bottom line is selling ads and making profit, not serving the public interest. Since serving the public interest is the basis for the privilege, why should any for-profit media organizations get it?
posted by saulgoodman at 11:55 AM on September 17, 2013 [3 favorites]


OK, let me make the hypo more clear-

I would agree that #2 gets no justice. But then I would say that without the media shield law, #1 wouldn't have come to you, you wouldn't have published anything, and #2 still wouldn't get justice.

Obviously we're speaking statistically and so not all the time will my scenario play out, but I would expect it to be the norm. Otherwise #1 wouldn't have been speaking anonymously at all.
posted by Lemurrhea at 11:56 AM on September 17, 2013 [2 favorites]


OK, let me make the hypo more clear-

I would agree that #2 gets no justice. But then I would say that without the media shield law, #1 wouldn't have come to you, you wouldn't have published anything, and #2 still wouldn't get justice.

Obviously we're speaking statistically and so not all the time will my scenario play out, but I would expect it to be the norm. Otherwise #1 wouldn't have been speaking anonymously at all
.

Actually, people have been talking to reporters for hundreds of years without a shield law, so your point doesn't stand up to scrutiny.
posted by Ironmouth at 11:57 AM on September 17, 2013 [2 favorites]




It really sounds like some folks might be overreacting to the proposed law going by the description in that link.

The process the proposed federal shield law authorizes is similar to procedures courts use when hearing motions to quash a subpoena. The federal government agency would not be able to compel disclosure of information from a “covered journalist” unless the agency seeking compelled disclosure has “exhausted all reasonable alternative sources (other than a covered journalist)” to obtain the “protected information.”

In a criminal investigation or prosecution, there also must be “reasonable grounds to believe that a crime has occurred,” “the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution” and the “Attorney General certifies that the decision to request compelled disclosure” is authorized under federal regulations.


It's not a free pass to never testify and it seems reasonable exceptions would be made, right?
posted by Drinky Die at 12:02 PM on September 17, 2013 [2 favorites]


But there's nothing in law to guarantee professional journalists actually are specially trained or bound by any extra ethical obligations anymore, if there ever was. Basically, you could be a paid shill for some corporate PR outfit branded as an "independent news outlet" and you'd enjoy special privileges under this definition, despite lacking any of the qualifying characteristics associated with professional journalism, while someone independently blowing the whistle on a big story on the internet, even if doing so genuinely was in the public interest, would enjoy none of those protections.

I don't necessarily disagree; I'm not arguing that the senate committee has come up with an unimpeachable definition of a journalist for the purposes of this law, or that the law is necessarily a good idea; I'm simply objecting to the maximalist claim that anyone who chooses to think of themselves as a journalist should automatically be regarded as a journalist and should ipso facto enjoy this "shield." I, too, think that Ironmouth's proposal of a "balancing test" may be a better way forward. Although I would also expect that to lead to endless wrangling in the courts.
posted by yoink at 12:04 PM on September 17, 2013 [1 favorite]


Hmm. What would be the corollary to DiFi's reasoning? Probably Worthington's Law
posted by fifteen schnitzengruben is my limit at 12:04 PM on September 17, 2013 [1 favorite]


OK, let me make the hypo more clear--#1 comes to you anonymously and says they don't want to bring a complaint but they saw #2 beat up by the cops. This makes #1 a witness. You publish, not revealing #1's name. (this is what the shield law is supposed to do, protect you from having to give over #1's name). #2 is suing the department. He needs witnesses who saw it all. His lawyer sends you a subpoena, saying give me the name of #1 so I can have him testify. You deploy the shield law. #2 gets no justice.

So aren't all anonymous complaints a problem, then? If I send an anonymous complaint to a company's higher-ups, and a lawyer for someone else learns it exists and wants me to testify for them, can they use my metadata or particulars of my case to track me down and force me to testify on their behalf?

In other words, can a lawyer explain to me why lawyers should always be able to compel testimony (which was not a power I was aware they had)? What about a witness who is afraid for their own life, or that of their family, how does that work?

And this leaves out the alternative of the lawyer for number 2 asking, instead of demanding, that no. 1 testify. There is nothing to stop the blogger from passing along the request from the lawyer, who can try to make a persuasive case that testifying is the right thing to do.
posted by emjaybee at 12:05 PM on September 17, 2013


I'm journalisming right now!
posted by blue_beetle at 12:12 PM on September 17, 2013


I wonder how she can breathe, being so deep in the pocket of the media companies?

I assume NBCUniversal provides her with a subscription to their Oxygen network.
posted by The Tensor at 12:26 PM on September 17, 2013 [9 favorites]


Some people working for corporate media are shills. Some are real reporters. Some real reporters are citizen journalists. This law offers some protection to groups one and two.

Why should anyone enjoy these extra privileges.

It's far from ideal that group two and not group three should receive protection, but I would much rather that a subset of the people doing journalism should enjoy these privileges than guarantee that no journalists are able to protect their sources.
posted by justsomebodythatyouusedtoknow at 12:30 PM on September 17, 2013


In other words, can a lawyer explain to me why lawyers should always be able to compel testimony (which was not a power I was aware they had)?

IANAL and there are Ls in this thread, so they will do a better job on this than me, but surely you must have heard of subpoenas, right? Subpoena power is (essentially) the power to compel testimony. Because most people in the thread are thinking of Wikileaks the discussion has focused around cases where people are on the side of the person who is resisting the subpoena, but there are lots of cases where we would all, normally, be on the side of person compelling the testimony. If I'm suing some company for, say, polluting a local waterway and I find emails suggesting that one of the company's scientists complained to his/her boss about the dangerous quantities of eviltonium their factory was spewing out, I'm pretty confident you'd be happy for me to be able to compel that scientist to testify in court about what motivated that email, right?
posted by yoink at 12:32 PM on September 17, 2013 [2 favorites]


I imagine that right now, without this law "protecting" journalists, the government is somewhat reluctant to bring the hammer down on anyone for protecting their sources. Because there is no official definition of "journalist," it's pretty easy to say, "Hey I'm a journalist and its bad for governments to try to harass journalists like you are doing." Still, journalists that refuse to comply with subpoenas are sometimes found to be in contempt of court

So the problem with these laws is that while they do create protections that did not exist before for SOME journalists, they also create an officially recognized NOT A JOURNALIST category, who will no longer enjoy whatever implicit protections they might have had.
posted by rustcrumb at 12:40 PM on September 17, 2013 [2 favorites]


Now, if you say "well, everyone's a journalist!!" because we all have access to the internet, you're then either saying that everybody should be granted this privilege (in other words, how do you ever compel anybody, ever, to testify about, say, a crime to which they were witnesses, if all they have to do to duck that obligation is say "oh, I was going to tweet about that, so I'm a journalist--sorry") or you're saying that nobody should.

The problem is that the United States government is making a delineation between journalist and non-journalist, not to establish who deserves this privilege, but to take this protection away from people it defines extralegally as terrorists/non-journalists — like those who participate in WikiLeaks and similar whistleblowing operations.

If this distinction has to be made, I would prefer more impartial groups do this. As one example, the fact that WikiLeaks participants have been invited to the Frontline club in London suggests that a number of "established" journalists accept that what WikiLeaks has done is, in fact and in purpose, journalism.

This much is clear: The US government has a vested interest in taking away this protection from people who uncover its abuses, and it has so far shown itself unable to be impartial in deciding who and who does not have this protection.
posted by Blazecock Pileon at 12:46 PM on September 17, 2013 [17 favorites]


Any test to determine if a person is a 'journalist' fails if Judith Miller passes. Can we all agree on that?
posted by el io at 12:49 PM on September 17, 2013 [2 favorites]


OK, but can't we just create a non-profit organization that nominally "employs" citizen journalists?
posted by stoneweaver at 12:49 PM on September 17, 2013 [4 favorites]


in all cases to people who have received special training by virtue of their profession about the limits and the ethical obligations of that privilege

Not so -- consider spousal privilege.

The "profession" criterion is a red herring. What matters is the vital shared interest that we be informed about our society -- and for purposes of this vital interest, the profession of the person speaking is irrelevant.

Note that the supposed abuses Feinstein is on about -- Wikileaks etc. -- are exactly journalism from this point of view.

That's why the First Amendment protects the freedom of speech and of the press, not the freedom of some particular people. (The "profession" of journalism did not even exist when that document was drafted.)
posted by grobstein at 12:53 PM on September 17, 2013 [3 favorites]


rustcrumb: So the problem with these laws is that while they do create protections that did not exist before for SOME journalists, they also create an officially recognized NOT A JOURNALIST category, who will no longer enjoy whatever implicit protections they might have had.

That's the crux of the matter: this legislation creates a class of non-approved journalists who explicitly have no protections. Conveniently, it's this class of journalist that's much more likely to expose government abuses.

But even the definition they agreed on wasn't good enough- Wikileaks could have been covered, hence the Assange clause:
The definition does not include any person or entity "whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization."
Meanwhile, approved journalists can still incestuously trade friendly coverage for access.
posted by anemone of the state at 1:06 PM on September 17, 2013 [3 favorites]


The fact that a private corporation has information relevant to a court case but wants to keep it secret so it can get a scoop and make more money for the private corporation?

If you're skeptical of profit-motivated news organizations, there are alternatives. Democracy Now is a nonprofit daily news program broadcasting since 1996. It is funded in large part by donations from people like me. ProPublica is a nonprofit news outlet founded in 2007, and has worked with The Guardian to publish stories based on documents leaked by Edward Snowden. Both Democracy Now and ProPublica release content under a Creative Commons license.

Groklaw is — was — a noncommercial, community supported website that covered technology news. Groklaw shut down in the wake of the Snowden leaks, after Lavabit shut down.

Actually, people have been talking to reporters for hundreds of years without a shield law, so your point doesn't stand up to scrutiny.

That's one side of the coin. Reporters must also be willing to talk to sources. Groklaw shut down because there was no guarantee that sources were protected against the forced exposure of their emails to the NSA. Pamela Jones, the founder of Groklaw, explained her decision in part by quoting another author on the subject of privacy:
"Shielded from forced exposure, a person often feels more able to expose himself." I hope that makes it clear why I can't continue. There is now no shield from forced exposure.
There are harms and benefits to almost any decision. In my opinion, the acute damage to specific court cases is outweighed by the broad benefits that go hand-in-hand with a robust press — and that includes everything from Groklaw to the New York Times. It includes blogs like FireDogLake, which did more to cover the day-to-day events in Chelsea Manning's trial than did any mainstream news outlet.

One final point: That the benefits outweigh the harms seems especially apparent if you believe that the acute damage is inflicted mainly to those court cases where the government's goal is to suppress reporting by discouraging future leaks.
posted by compartment at 1:06 PM on September 17, 2013 [3 favorites]


What's next, practicing journalism without a license?
posted by cosmic.osmo at 1:10 PM on September 17, 2013 [1 favorite]


The problem is that the United States government is making a delineation between journalist and non-journalist, not to establish who deserves this privilege, but to take this protection away from people it defines extralegally as terrorists/non-journalists

This is incorrect. If this shield law passes it will be a new legal protection for journalists, it does not take away a right that anybody currently exercises. It is possible (though unproven) that it might lead DAs to be more willing to bring certain kinds of legal action against people who fall outside the definition of "journalist" in the bill than they currently are, but it doesn't actually change their legal position at all.

What matters is the vital shared interest that we be informed about our society


That's fine, but it simply won't work to say "journalists never have to give up their sources and anybody at all is a journalist." Because then nobody can ever be compelled to give testify about any second party's actions. So you either need some working definition of "journalist" that accurately delineates the class of people whose work you're trying to protect (something that, so far, nobody in this thread has attempted) OR you need to abandon the idea of a "shield law" altogether and instead direct judges to apply some kind of "balancing test" as Ironmouth proposes, where they consider the harm resulting from compelling testimony and weigh it against the harm resulting from shielding the "journalist." Just pretending that people won't misuse a "journalism shield law" if anybody can describe themselves as a journalist really isn't a useful engagement with the problem.
posted by yoink at 1:49 PM on September 17, 2013 [2 favorites]


"journalists never have to give up their sources

Is that what this law says?
posted by Drinky Die at 1:54 PM on September 17, 2013


The problem in defining journalist is that journalism is (and should be) at odds with the powers that be...and so licensing/setting up rules provides those powers with a means for punishing/censoring journalists.

I think a lot of us here are not so much pro-shield-law-for-all exactly as worried that the government is using the idea of altering the shield law to make it easier to imprison some people it doesn't like for reporting things that make it look bad. That would certainly be consistent with recent crackdowns on whistleblowers.

Any kind of information, even a tweet about a car accident you saw, falls under "news" in that it's "a report of an event that happened." So how on earth do you draw a bright line in a world full of people relating stuff that happened 24/7?

This conversation has been made much more difficult, in other words, by technology and by the government consistently being a bad actor and having motives that are blatantly aimed at suppressing dissent when it comes to reporting and free speech.
posted by emjaybee at 2:02 PM on September 17, 2013


the government is using the idea of altering the shield law to make it easier to imprison some people

There seems to be something of a misunderstanding in this thread. The government isn't talking about "altering the shield law." There is, currently, no shield law for journalists. The government is talking about creating a shield law and is worrying about how to make it a shield only for people who are actually doing journalism and not a shield law for every single person in the world who is capable of somehow making the claim "I am or intend to be a journalist."
posted by yoink at 2:07 PM on September 17, 2013 [1 favorite]


So you either need some working definition of "journalist" that accurately delineates the class of people whose work you're trying to protect (something that, so far, nobody in this thread has attempted)...

Just for kicks, here is a list of different definitions offered by journalists from countries across the world. The differences between responses is interesting in and of itself. The entire list is worth reading, but the first, last, and second-to-last definitions caught my attention. Nothing stood out to me as a great definition to use for a shield law.

For the sake of consistency, a good first step might be to borrow our definition from the Freedom of Information Act:
In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public ... Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities.
The government has already decided that non-traditional journalists are covered by this clause. I can't track it down right now, but I am fairly certain there is case law where this definition was interpreted to cover something as simple as an online newsletter.

If it's good enough for the FOIA, why isn't it good enough for a shield law?
posted by compartment at 2:08 PM on September 17, 2013 [4 favorites]


So you either need some working definition of "journalist" that accurately delineates the class of people whose work you're trying to protect (something that, so far, nobody in this thread has attempted)

I tried.
posted by Blazecock Pileon at 2:09 PM on September 17, 2013


Is that what this law says?

Not exactly, but it would make it practically much more difficult to compel a "journalist" to testify as to something they had been told by a third party, to the identity of that third party or about something they had witnessed directly in pursuing their job as a journalist. Now, do you think it is a good idea for the state to extend such a shield to every single person who can claim "well, I was gathering material for this expose I am planning to publish on a blog next year"? Because, if so, that will end up shielding an awful lot of people who are A) doing things the average mefite thinks are really, really bad and ought to be subject to legal sanction and B) are not in any sense of the word "journalists" who are contributing to an informed populace.
posted by yoink at 2:12 PM on September 17, 2013 [1 favorite]


If I write a blog I am not a journalist just someone with an online diary.
If I write a blog which is published by some sort of organization I become by definition a journalist.
By chipping away at the inconveniences which reflect that a state should uphold its responsibilities to its citizens the state is moving away from an open democratic process towards a state of authoritarianism. What it seems is being experianced in America is the steady chip chip chip of the erosion of freedom.
posted by adamvasco at 2:12 PM on September 17, 2013 [1 favorite]


I tried.

Unless you've had a post removed, BP, the extent of your effort appears to be the argument that Wikileaks ought to count. I think you might agree that that's not really all that useful in providing a clear dividing line in any case whatsoever other than, well, the case of Wikileaks.
posted by yoink at 2:14 PM on September 17, 2013 [1 favorite]


What it seems is being experianced in America is the steady chip chip chip of the erosion of freedom.

This proposed law is about granting a new legal protection to, at the very least, a very large body of active journalists. It's a little bit of a stretch to read this as some dark sign of impending totalitarianism.
posted by yoink at 2:16 PM on September 17, 2013 [1 favorite]


That's the beauty of it, Yoink. You start out by offering a benefit to people who are willing to accept a new government definition of "journalist." Then it's simply a matter of gradually refining the definition to the government's advantage. Eventually the only people with protection are the ones who don't need it because they are doing whatever the government wants them to.

Much better to define journalism broadly and offer protection to anyone who practices it, paid or unpaid, professional or amateur, highly skilled or really awful.
posted by Longtime Listener at 2:28 PM on September 17, 2013 [5 favorites]


The proposed law is about granting legal protection to only those who are " approved" journalists. The state does the approving. If you look how well the state is presently looking after the interests of the majority of its citizens and not just its capitalistic elite you might have pause for thought.
posted by adamvasco at 2:28 PM on September 17, 2013 [5 favorites]


Do people ever look at history and think: "Maybe the U.S. government isn't all that trustworthy." Or do people just not read history?
posted by AElfwine Evenstar at 2:42 PM on September 17, 2013 [4 favorites]


Unless you've had a post removed, BP, the extent of your effort appears to be the argument that Wikileaks ought to count.

I think I tried to suggest that entities more impartial than the US government decide what constitutes capital-J journalism, using the Frontline Club's evaluation of WikiLeaks as one particular example of how a NGO or "guild" could do a more objective job, not specifically that WikiLeaks defines whatever that is.

I am really trying to discuss my disagreement in good faith. I would appreciate it if you do the same.
posted by Blazecock Pileon at 2:52 PM on September 17, 2013 [3 favorites]


Given the context - the Snowden leaks - it seems clear that the intended purpose of this law is to ensure that unlawful acts by the government go unreported. They've been caught red-handed violating the 4th on an industrial scale and their collective response is "you're not supposed to know about that, and we're going to pass laws to ensure you can't find out any more!".

I am astounded at how brazen they are acting.

This has quashed any hopes I had of real reform of the NSA. They are too busy circling the wagons.
posted by swr at 3:15 PM on September 17, 2013 [11 favorites]




we're going to pass laws to ensure you can't find out any more!".


the proposed law wouldn't take away protections from anyone. for people not covered, its the status quo.
posted by jpe at 3:18 PM on September 17, 2013


"Real reporters" earn a salary that can be threatened.

Also, citizen journalist really sounds like linguistic infiltration here. Its journalist or reporter or maybe blogger/writer/letterer or something along those lines. The additional qualifier before the title makes it sound second class before seeing the quality of (or lack thereof) work.
posted by Slackermagee at 3:26 PM on September 17, 2013 [1 favorite]


the proposed law wouldn't take away protections from anyone. for people not covered, its the status quo.

No, we already tried this when they unveiled new protections for whistle-blowers. It seems that the main achievement of the whistleblower protections has been to paint our most critical whistleblowers as Not-A-Whistleblower and therefore undeserving of the protective treatment that is of a traditional, popular, and expected nature, regardless of those protections not being enshrined in law.

I think it's important to consider that redefining journalism in this way can absolutely result in loss of protections for journalists, because many of those protections are not of a legally-guaranteed nature.

I would also suggest that it's not just possible, but extremely likely.
posted by anonymisc at 3:27 PM on September 17, 2013 [6 favorites]


the proposed law wouldn't take away protections from anyone. for people not covered, its the status quo.

I could be mistaken, but as I understand it, there is an implicit protection for journalists. By spelling out who that applies to, they solidify that protection for some while dissolving it for others.

(On preview, what anonymisc said.)
posted by swr at 3:29 PM on September 17, 2013 [2 favorites]


the proposed law wouldn't take away protections from anyone.

No. Until now, government has, to an extent, held off persecuting the press because doing so would make them look bad. There has been a 'gentleman's agreement', so to speak.

By establishing a class of protected journalists, it will be open season on all others.

To make an analogy: Once a city has installed a half-pipe, police crack down on people using skateboards for transportation.
posted by anemone of the state at 3:32 PM on September 17, 2013 [3 favorites]


I think I tried to suggest that entities more impartial than the US government decide what constitutes capital-J journalism, using the Frontline Club's evaluation of WikiLeaks as one particular example of how a NGO or "guild" could do a more objective job, not specifically that WikiLeaks defines whatever that is.

I am really trying to discuss my disagreement in good faith. I would appreciate it if you do the same.


So your contribution to the difficult question of how we define what a journalist is is "an NGO could do it"? You'll forgive me if I say that with the greatest good faith in the world that doesn't seem to advance the discussion much.
posted by yoink at 3:46 PM on September 17, 2013


Real Journalists heed their patriotic duty to the State above all.
posted by acb at 3:50 PM on September 17, 2013


Something that just occurred to me is this. The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..."

By defining who is and who is not "the press", you also open the door for the creation of laws which can penalize press-like activites by non-state-sanctioned "journalists". You might also be able to head off any whistleblowing entirely by saying, "If you publish a story about something before the Proper Channels have been exhausted, then you lose your Journalist status and must pay a fine."
posted by rustcrumb at 4:01 PM on September 17, 2013 [2 favorites]


Much better to define journalism broadly and offer protection to anyone who practices it, paid or unpaid, professional or amateur, highly skilled or really awful.

Could you perhaps try to at least sketch such a definition in such a way that this doesn't become a blanket offer of a shield to simply "people"? Give me a definition that can't be used by someone you would actually want to see compelled to testify (think evil banking exec or what have you) as a spurious way of avoiding a subpoena.
posted by yoink at 4:02 PM on September 17, 2013


All those predicting dire persecution of everyone who isn't a "state sanctioned journalist" might want to explain why, say, a similar thing hasn't happened to non-state-sanctioned lawyers despite the fact that attorney-client privilege is extended only to "real" lawyers. I know, it is shocking--despite the fact that us citizen-lawyers dispense free legal advice every day of the week right here on Metafilter, we are not protected by attorney-client privilege! Truly, the Third Reich is just around the corner.
posted by yoink at 4:06 PM on September 17, 2013


Yoink, I'm perfectly happy to let an evil banking executive take his chances with a journalism defense, if it means protecting ordinary people really engaged in journalism. If our imaginary banker is that evil, I suspect the government has other tools at its disposal to get what it wants out of him.

You example of lawyers illustrates exactly what I would want to avoid, which is the state deciding who is and is not allowed to practice journalism.
posted by Longtime Listener at 4:10 PM on September 17, 2013 [2 favorites]


Is that what this law says?

Not exactly


Not at all, it seems to me.

, but it would make it practically much more difficult to compel a "journalist" to testify as to something they had been told by a third party, to the identity of that third party or about something they had witnessed directly in pursuing their job as a journalist.


Yeah, it's supposed to make it harder because people are currently concerned that it is too easy. We aren't talking about making it impossible though, we are talking about having to be very sure the testimony is necessary and that other options have been explored.

Lots of legal processes are difficult because so many interests and rights must be balanced against each other. The hypothetical idea that people will abuse this law must be balanced against the reality that the government has been very aggressive with journalists in recent years and some people are concerned with that.

I think we can trust judges to determine if it is reasonable to believe if a specific amateur is or is not engaged in journalism. It is quite clear that at least some amateur reporters clearly are and deserve the same legal protections as professionals. It would be an injustice to deny them access to the same legal protections as professionals.

If, for instance, someone could provide no evidence that they had any intent to publish as journalism their account until after they were asked to testify, a judge could decide they should not be covered by the shield law.
posted by Drinky Die at 4:15 PM on September 17, 2013 [1 favorite]


Could you perhaps try to at least sketch such a definition

What's wrong with just using the existing FOIA definition?
posted by anonymisc at 4:15 PM on September 17, 2013 [2 favorites]


Journalism is by all means a practice. Defining journalism according to guidelines for what form of organization journalism must take for the thing to be considered journalism is off the mark. You define journalism by what the supposed journalist is doing, i.e., "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience."* This is a very specific set of parameters for what someone in the profession of journalism does. I think it's a gross hyperbole to talk about someone already facing charges to rush to blogspot and start journalatin'. I think, as has been mentioned, that weighing providing these protections for people who engage in this profession, in whatever form of organization, against the possibility that villainous forces will use freedom of information and confidentiality to abuse us, things come out better in the balance with a lighter hand.
posted by Marisa Stole the Precious Thing at 5:40 PM on September 17, 2013 [4 favorites]


Is Dianne Feinstein a martinet on every issue?
posted by telstar at 5:44 PM on September 17, 2013 [1 favorite]


By defining who is and who is not "the press", you also open the door for the creation of laws which can penalize press-like activites by non-state-sanctioned "journalists".

Press-like activites by non-state-sanctioned "journalists" = speech. Which is just as protected as the press.
posted by ROU_Xenophobe at 5:46 PM on September 17, 2013


We definitely don't need any more ordinary words redefined for us in law in ways that violate common sense. If the word "Fraud" still carried its original, more common sense meaning in the practice of law, we could easily have held Wall Street to account for wrecking our economy (and we'd have legal remedy for all kinds of potential abuses without needing an act of congress when, for example, someone rolls out a new business model based on an old fraudulent business model that's been re-engineered to comply with the letter of the law while still skirting its spirit). But in legal practice these days, it seems to be all about controlling and manipulating the meaning of language to protect vested interests while undermining the popular will that motivated the language of the law in the first place. I know people too often invoke the word "Orwellian," but seriously: in law, that seems to be the game now. Parsing all the common sense out of language so politicians can claim to be doing something about a problem when they're really just protecting establishment interests.
posted by saulgoodman at 5:59 PM on September 17, 2013 [5 favorites]


Here's John Swinton's 1880 explanation of what a journalist is:

The business of the journalists is to destroy the truth, to lie outright, to pervert, to vilify, to fawn at the feet of mammon, and to sell his country and his race for his daily bread.... We are the tools and vassals of rich men behind the scenes. We are the jumping-jacks; they pull the strings and we dance. Our talents, our possibilities and our lives are all the property of other men. We are intellectual prostitutes.

That's probably the kind of "real" journalist that Congress has in mind.
posted by Twang at 6:36 PM on September 17, 2013 [2 favorites]


So Journalism credentials are like Healthcare in America? Quit your job or get fired, and you don't have it anymore.
posted by blue_beetle at 7:49 PM on September 17, 2013 [4 favorites]


There are lots of legal terms that aren't defined by legislation, and judges interpret them using precedent and common sense: i.e., the Common Law. Defining these terms in legislation legislation removes judges' discretion and makes the application of the law more predictable and less flexible. This is sometimes a good thing and sometimes bad, but I suggest that when it comes to citizens' shields against an over-reaching government it is better to trust judges' discretion than to rely on black-letter law written by that same government.
posted by Joe in Australia at 9:03 PM on September 17, 2013 [2 favorites]


If you want a good example of the problem of granting a blanket "everyone's a journalist if they say so" shield, consider the case of the Steubenville rape photos. Should the kids who took those photos (I'm talking here about ones that weren't made public by other means) be able to refuse to hand them over to the prosecution because their tweets about the event constitute "journalism"?

In future, if some kid tweets about a girl being raped at a party, should he have a right to refuse to testify about what he saw and to hand over any material he may possess that would help convict the perpetrators because he is a "journalist"?
posted by yoink at 9:51 AM on September 18, 2013 [2 favorites]


Because a judge would not buy it for a second, that's why.
posted by anemone of the state at 10:03 AM on September 18, 2013


If the photos are on Twitter, why do we need to compel their production?
posted by Drinky Die at 10:24 AM on September 18, 2013 [1 favorite]


The US attorney general vows not to prosecute journalists, but his criminalisation of whistleblowers undermines that assurance.
Now, the US owes its citizens and the international community another "heads up": on whether the United States will do the same to journalists working on NSA stories who are entering the United States. Put simply, will Attorney General Eric Holder, the US State Department, and the FBI promise safe passage to journalists, their spouses and loved ones, and vow not to interfere with their reporting on these NSA stories?
posted by adamvasco at 1:32 PM on September 18, 2013 [1 favorite]


Mefi's own ioerror, a security expert and journalist, had his partner wake up to find men with night-vision goggles looking in her window. Police wouldn't do anything. A FOIA wouldn't turn up anything. A FOIA about that FOIA turned up nothing.

All because of his journalistic work with Wikileaks. It's absolutely fucking scary and creepy what they will do to persecute journalists.
posted by anemone of the state at 1:42 PM on September 18, 2013 [3 favorites]


A FOIA wouldn't turn up anything.

Maybe the fax machine was broken.
posted by homunculus at 1:54 PM on September 18, 2013


Charles Pierce: Dianne Feinstein Defines "Journalist"
posted by homunculus at 1:45 PM on September 19, 2013 [2 favorites]


From homunculus' link, emphasis added:

This isn't a law to protect journalists. If it were, that list of loopholes at the end wouldn't be quite so lengthy -- or quite so vague. (You can drive a team of ploughhorses through "information that could stop or prevent crimes such as...") This is a law to protect secrets. This is a law that redefines the exercise of a constitutional right as a privilege "protected" by the government. This is a law that allows the government to define what "the press" is under the First Amendment, and, my god, if that's not the primary consitutional heresy in that regard, I don't know what is. And I don't care that a judge can "extend" that privilege. That's not a judge's job, either.

posted by anemone of the state at 2:41 PM on September 19, 2013 [1 favorite]




Comment on homunculus' link from an ex Wapo journalist.
posted by adamvasco at 1:40 PM on September 28, 2013 [1 favorite]




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