We're All Privileged

By Scott Gant
Thursday, June 14, 2007 12:00 AM

Today the House Judiciary Committee will hold its first hearing on a potentially historic bill to protect journalists. What's most remarkable about the legislation, however, is not what it does for journalists, but how it defines journalism.

The "Free Flow of Information Act of 2007" would enact a statutory "shield law" on the federal level protecting journalists from having to disclose certain information they would be forced to reveal were they ordinary citizens, such as the identity of a source or materials collected during newsgathering. Thirty-three states and the District of Columbia have enacted shield laws protecting at least some journalists, while others have recognized limited privileges for reporters in court rulings. Yet Congress has never enacted a federal version of the law, despite the introduction of more than 100 bills proposing some measure of special protection for journalists over the past 80 years.

Congress's most recent consideration of a federal shield law began in late 2004. After watching several reporters being compelled to identify their sources during Special Prosecutor Patrick Fitzgerald's investigation into the "outing" of then-CIA operative Valerie Plame Wilson, members of both the House and Senate introduced shield legislation. The Senate Judiciary Committee held several hearings on the issue, but the measures stalled before the 2006 election.

Some of the difficulties facing this kind of legislation stem from disagreement about who should be covered. Many media organizations have favored a narrow law on the theory that a federal shield law could garner sufficient support only if it applied a limited group of people. The Senate bills of the past several years reflected that view, defining a "journalist" as a person who "for financial gain or livelihood" is engaged in newsgathering or news reporting "as a salaried employee of or independent contractor" for one of several specific types of media organizations or another "professional medium or agency." To qualify as a journalist, the organization for which the work is being done must have the "processing and researching of news or information intended for dissemination to the public" as one of its "regular functions."

This constricted view of who is a journalist is used in many state shield laws, and until recently seemed likely to prevail in any federal version of the law.

The Free Flow of Information Act of 2007, however, adopts a dramatically broader view of journalists -- and of journalism. The bill's safeguards apply to anyone engaged in "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." The sponsors of this legislation resisted calls to regard journalism as something carried out only by employees of established news organizations.

This is as it should be. The "freedom of the press" conferred by the First Amendment has always been a right and a privilege that belongs to all citizens. Yet the century that preceded the emergence of the World Wide Web appears to have hardened an artificial distinction between professional journalists and everyone else. Technology has democratized communications in general and journalism in particular. It is now apparent that people operating outside of traditional media organizations, individually and collectively, play a significant role in breaking, analyzing and distributing news.

Of course, shield laws are just one way the government bestows on those deemed "journalists" privileges unavailable to others. As journalism returns to its status as an activity rather than a profession, it is appropriate to rethink what it means, and consider carefully how non-traditional journalists should be treated compared to those who work for established news organizations. Although it remains to be seen how the Free Flow of Information Act of 2007 will fare in Congress, the sponsors of this bill rightly view journalism as an endeavor that belongs to all of us.

Scott Gant, a lawyer, is the author of "We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age."

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