Government can’t define journalists

Published 9:47 pm Wednesday, June 19, 2013

Nearly drowned out amid the cacophony of scandals surrounding the Obama administration are the words of President Barack Obama, who has now endorsed a federal shield law to “protect” journalists.

The problem with the proposed law is that it gives unchecked power to the government to decide just who is a journalist.

“President Obama, under fire from civil libertarians for the seizure of journalists’ telephone records, is endorsing a federal shield law for reporters seeking to protect their confidential sources, aides said Wednesday,” USA Today reports. “The Obama administration is backing a proposal by Sen. Charles Schumer, D-N.Y., legislation that mirrors many state laws which say reporters do not have to disclose the names of confidential sources, or their means of communicating with them.”

On the surface, that sounds great. Shield laws can be an important protection.

But the law proposed by Shumer is fatally flawed, because it sets out to define the term journalist. And it does so badly. It says a journalist is someone who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters…”

An older version of the bill specified that a covered journalist must be someone who “for financial gain or livelihood, is engaged in journalism” — in other words, someone who is paid.

One problem is that leaves out freelancers, who might or might not get paid, Pretty much all The Huffington Post contributors are unpaid. And Samuel Adams helped launch the American Revolution with articles written at his malt-house in Boston.

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 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?”

As the IRS scandal shows, we can’t.

The First Amendment applies not just to a special class of citizens (paid reporters, working for “recognized” outlets), but to everyone, points out the American Enterprise Institute’s Jonah Goldberg.

“When James Madison wrote the First Amendment, he undoubtedly had in mind not just journalists but also the countless private, often anonymous, pamphleteers who often went after those in power with hammers and tongs,” he says.

There’s a strong argument to be made that journalists would be better off without a poorly written shield law. That’s because the First Amendment should be read as the most comprehensive shield of all.

Still, lawmakers seem to have a drive to actually make laws, a habit that really shouldn’t be encouraged. But as long as they feel they must, then they should pass good laws, that actually accomplish what they intend.

The shield law proposed by Shumer, which now has the White House’s support, doesn’t. Instead of reining in government and giving more freedom to journalists, it empowers government to decide which journalists it will recognize — and which it won’t.

That’s a bad law.