A media “shield” law being debated in the US Congress, in a bid to protect reporters with confidential sources, has divided journalists and free-speech advocates.
Earlier this year, the White House lent its backing to legislation aimed at strengthening the rights of journalists, after a political firestorm over the government’s seizure of reporters’ phone logs.
The proposal — which aims to allow journalists to protect their sources from law enforcement — initially drew praise from journalists and organizations. But some have second thoughts now.
A bill approved by the Senate Judiciary Committee and pending in the full Senate, offers protection for “persons connected with the news media” who are served with subpoenas or other court orders seeking unpublished information.
But some reporters and media watchdogs say the bill, however well-intentioned, may not help journalists protect their sources, and might even erode press freedoms.
“A shield law for journalists might seem like a good idea, but it isn’t — it’s actually a terrible idea,” says Matthew Ingram, a senior writer for the tech news site GigaOm, writing on the affiliated blog Paid Content.
“What it really does is allow the government to define who gets to be a journalist and who doesn’t. And that’s dangerous.”
That sentiment was echoed by Matt Drudge, an Internet journalist who created one of the early news aggregator sites, The Drudge Report.
“Gov’t declaring who qualifies for freedom of press in digital age is ridiculous! It belongs to anyone for any reason. No amendment necessary,” Drudge said in a tweet.
The Senate panel approved the measure 13-5 after a heated debate, during which California Senator Dianne Feinstein argued the protection should apply only to “real reporters” and not “everyone who has a blog” or media leakers such as former intelligence contractor Edward Snowden.
Senator John Cornyn, a Texas Republican, opposed the bill, saying that “any carve out of a particular media for protection is in effect government licensing of legitimate media.”
Media watchdog group Reporters Without Borders said the Senate panel’s bill has “major flaws,” notably the definition of a journalist which is too narrow.
The French-based organization said the bill would not have prevented the Justice Department from seizing the phone records of the Associated Press as part of its leak investigation, nor would it have helped Fox News reporter James Rosen or James Risen of The New York Times, both facing federal orders to hand over sources.
“It seems that the shield law as it is right now would be worse than not having one,” said Delphine Halgand, Washington director for Reporters Without Borders.
“There would be no protections for journalists in cases of national security investigations.”
Other reactions underscored the conundrum in any law, which would have to strike a balance between press freedoms and law enforcement and national security.
The Senate bill “is better than nothing but could still be considerably better,” said Dan Gillmor, director of the Knight Center for Digital Media Entrepreneurship at Arizona State University.
“Anything that defines what a journalist is could end up become a de facto licensing system. If we are going to protect something, we should protect journalism, period, and not attempt to define who is a journalist.”
David Greene, attorney for the Electronic Frontier Foundation, said the Senate bill is imperfect but still would advance protection for the media.
Greene said the bill attempts to steer clear of limiting protection by using the term “covered journalist” instead of “journalist.”
“Although this may seem purely cosmetic, it is a significant substantive improvement,” he said in a blog post.
Greene said the bill also contains a “judicial discretion” provision to enable a judge to extend the shield law’s protection to “non-mainstream and citizen journalists.”
Ken Paulson, dean of communications at Middle Tennessee State University and president of the media rights First Amendment Center, said critics miss the point that media rights can take time to evolve with new technology.
Paulson said the ability to withhold sources is not an absolute right enshrined in the constitution but “afforded by a legislative body.”
“Any shield law is better than no shield law at all,” Paulson told AFP.
“We have struggled for years to try to ensure some protection for reporters at the federal level.”
Paulson argued that “no legislation can anticipate the revolutionary media that’s on the way,” but that “a good shield law lays out the values we are trying to protect, and future legislation and court rulings will refine that.”