First Amendment is our shield law

Published on Saturday, 29 March 2014 22:43 - Written by

U.S. Sen. John Cornyn is absolutely right — a new “shield law” purportedly designed to protect journalists is a bad law and a potential power grab by politicians. The Free Flow of Information Act, which passed the Senate Judiciary Committee last fall, will soon be before the whole Senate.

Senate Republicans should stand with Cornyn to kill the bill.

The bill’s Democratic author, Sen. Chuck Schumer of New York, says he has the votes to win passage.

“It’s very, very likely the Senate will pass a bill this year,” Schumer told Politico last week. “Just about every Democrat is for the bill. We have five Republicans on record being for it, three of them are co-sponsors.”

The intent of the bill is to shield journalists who wish to protect their sources. That’s all well and good. But for journalists to rely on politicians for that protection is like antelopes relying on the lion for the rules of pursuit.

Although shield laws at many levels can be helpful, the federal government’s latest effort — made in the wake of the NSA spying scandal — gives far more power to bureaucrats than the First Amendment actually affords them.

One example of such power is the authority to decide who is and who isn’t a journalist. That’s a key reason Cornyn is against the bill.

“They want to pick and choose which journalists are covered,” Cornyn told Breitbart News on Tuesday. “In other words, if you’re a blogger they might not cover you, but if you work for the New York Times they might. Given the changes in the way we get information and the way we consume news, that really smacks to me in essence of government licensing who’s an official ‘journalist’ for the purposes of a shield law and who’s not. If there is one thing I can glean from the First Amendment, it is that government should not be in the business of licensing the news media.”

Here’s what’s wrong with such a law.

First, plenty of reporters don’t draw a regular salary. There are stringers and freelancers. Many journalists write “on spec” — with no assurance of being paid or even published. The bill could potentially lock them out.

And this is not what the framers of the Constitution envisioned. Samuel Adams, you’ll remember, helped spark the American Revolution with his journalistic efforts from behind the bar at his ale house.

The First Amendment was written with pamphleteers in mind — the salaried, full-time journalist didn’t really exist yet.

The Wall Street Journal’s James Taranto said recently that the government isn’t the right agent to decide what a journalist is or isn’t.

“It puts the government in the position of licensing the media,” he contends. “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.

We have a shield law. It’s called the First Amendment.