Flawed shield law isn’t worth passing

Published on Monday, 16 September 2013 23:36 - Written by

The media should have one message for the U.S. Senate: Don’t do us any favors. The Senate Judiciary Committee’s passage of a new “shield law” is both an insult and an intrusion. The press has all the protections it needs — in the First Amendment.

The Senate’s shield law is a response to Attorney General Eric Holder’s overreach, but it’s a deeply flawed measure. It purports to protect journalists, but it begins by defining who is and who isn’t a journalist. And that’s a power that government bureaucrats shouldn’t have.

“The protections would apply to ‘covered journalist,’ defined as an employee, independent contractor or agent of an entity that disseminates news or information,” the Associated Press reported last week. “The individual would have to have been employed for one year within the last 20 or three months within the last five years.”

That’s an unacceptable definition of journalist. It doesn’t cover freelancers, for example, or citizen-journalists or apparently even interns. It wouldn’t have covered founding father Samuel Adams, for instance — he kept a tavern while writing political essays that helped launch the American Revolution. At no time was he “employed” as a journalist, as the Senate legislation would require. The First Amendment was written with pamphleteers in mind — the salaried, full-time journalist didn’t really exist yet.

Almost as an acknowledgement that the definition is inadequate, the Senate bill would also allow a federal judge to declare a person a “covered journalist,” at the judge’s discretion.

Again, why should this power be in the hands of government officials?

This is a very slippery slope. The Wall Street Journal’s James Taranto pointed this out recently.

“It puts the government in the position of licensing the media,” he said. “If the government is in the position of saying ‘You’re a news gathering organization, you’re not’ — if the government is making that determination, how can we have confidence in the government to do that without exercising favoritism?”

We can’t, as the recent IRS scandal demonstrates.

The White House already differentiates between news outlets it considers legitimate (in other words, friendly) and those it doesn’t. President Obama vilifies Fox News, for example, while granting important, substantive interviews to late-night comedians like Jay Leno.

Given this additional power, this — or any — administration could freeze out reporters who ask too many questions.

And that’s not a far-fetched scenario. Last May, Holder’s Justice Department monitored Fox News’ James Rosen. It tracked his movements, his phone calls and his emails. To get the warrant to do so, Holder claimed Rosen was a criminal and also a flight risk. Holder also subpoenaed the emails of the Associated Press.

Holder later claimed he never intended to prosecute Rosen or AP reporters; he just wanted the warrants.

The real point here is that journalists are in the business of not trusting the government. And their protections don’t come from government officials; they come from the First Amendment.

No shield law is better than the flawed version now making its way to the Senate floor.