On Sunday, both the Washington Post and the New York Times rightly took the Obama administration to task for its recent discouraging move to weaken the federal shield law that is making its way through the Senate.
But both papers were interestingly silent on the gigantic hole that was earlier blasted in the fabric of the proposed law by Senate Judicial committee chair, Chuck Schumer.
We’ll get to the Schumer part of the issue in a minute, but first a look at the administration’s steps in the wrong direction.
In March the House passed a strong version of the shield law with bipartisan support.
As the Post reports:
In that measure, a journalist would be compelled to reveal a confidential source only under specified conditions, such as if disclosure is needed to prevent death, bodily harm or a terrorist act. Disclosure would also be required when investigators sought to identify a person who leaked properly classified information in a manner that caused “significant and articulable” harm to national security. But in all cases, those seeking to compel disclosure would have to exhaust all reasonable alternative sources of information and demonstrate that the public interest in disclosing the source outweighed the public interest in thorough news coverage.
But now the White House is floating a version that substantially weakens the protections against making reporters reveal their sources. Here’s how the NY Times explains it.
At the heart of the disagreement is the balance between national security and the public’s right to know. The best approach is to protect legitimate security claims while rejecting those that are made in the name of national security but are really aimed at avoiding embarrassment. That was the constant cry from the Bush administration as the public learned — through the unauthorized disclosure of confidential information — of prisoner abuse, secret C.I.A. prisons for terrorist suspects and warrantless wiretapping.
All of the above is quite depressing. The White House says it is still tinkering, meaning we can hold out hope that they will snap awake from their reactionary moment and decided to back a more transparency-friendly version of the bill. (After all, 30 states have fairly good shield laws and the republic has not fallen.)
But even if the White House does come around, we still have the issue of the Schumer amendment. Here’s the deal: In its earlier version, the Senate shield bill was written to define “journalist” as “a person who is engaged in journalism”—a description that was broad enough that to take into consideration the fast-evolving state of the news gathering business.
Then Chuck Schumer began listening to critics and jammed through an amendment that features the following brand new definition of who ought to be protected by the shield law (should the damn thing ever manage to pass with any of its teeth left in its head):
(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(II) that—
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service;
The first paragraph of this definition quickly eliminates journalism students who might report something of significance.
But the most crucial word in this new way of delineating who deserves protection and who does not is the word “and” that sits between section I and section II.
The whole thing will need a more precise legal interpretation but most are reading it to mean that it excludes bloggers and/or web journalists whose work is not attached to a newspaper, magazine, book publisher, wire service, TV or radio broadcaster.
Interesting that neither the NYT or the WaPo saw fit to do an editorial on that little change.
Maybe liberals like Schumer and the mentioned papers don’t consider blogs to fall under the definition of journalism and, thus, are not entitled to protection by the freedom of the press clause of the First Amendment…you know, part of that liberal elite attitude. In fact, the NYT and Washington Post would welcome bloggers not being protected, as that would limit who would talk with them and would exhaust their funds in a legal battle with the DOJ.
Film producers doing documentaries must not be covered by the First Amendment and the Schumer amendment…especially if it’s about dog fighting. – Should dogfight videos be protected under the First Amendment?
Woody, I think you’re actually quite right—about the WaPo, the NYT. (But, all jokes aside, if there’s a whistleblower video about some official on the take thus looking the other way about dogfighting, you’d want to protect the filmmaker’s ability to get that information, yes?)
Celeste, I wasn’t taking a position on the film documentaries and expose’s, just mentioning another unprotected group. I don’t suppose that 60 Minutes is considered journalism.
Who gets protection is a tough question, especially if revealing sources can help public safety officials to protect people. But, I’d side with a strict interpretation of the First Amendment and let the NYT put its liberal politics and protected sources over the welfare of millions of Americans. Freedom of the Press didn’t require a responsible press.
However, if the Left wants to twist the Second Amendment into allowing weapons for non-existent state militas only, maybe the original intent of the First Amendment was to protect only the press that used the printing press with movable type.
The practice of journalists acting as conduits for government leakers is too often very anti-democratic.
The leakers have their agenda, and it is usually contradicted by their superiors who ultimately report to the people, so the leakers bypass the democratic system and feed to the media. The media, feeding off of this anti-democratic practice, encourage it. This is especially true when the media is in ideological disagreement with the government (say, whenever a Republican is in office).
Leakers are often criminals and reporters are often obstructing their prosecution.
To hell with shield laws entirely. Nowhere does the constitution give reporters or leakers special rights (which is why reporters are seeking to be legislated as a fourth branch of government, arrogating privileges previously reserved for the people).
In the meantime, and in the spirit of openness and to protect the rights of those who keep the public informed, maybe Obama, who says one thing publicly but allows his appointees to do another, should call off his FCC Chairman and his attack dogs, such as Pelosi, who sincerely want and are trying under the cover of darkness to put the so-called “Fariness Doctrine” back in to block views from conservative talk radio.
To provide a thought (flame?) provoking viewpoint…
Watergate was effectively a coup by the secret police (FBI) against a democratically elected president, abetted by a media hostile to that president.
The Watergate coup was created, and made specifically effective enough to cause the resignation, by the carefully controlled leaks of information by the assistant directory of the FBI (I think that was his title) to willing media accomplices.
None of which is to say that Nixon and crew weren’t doing dirty deeds.