Flawed shield law isn’t worth passing

Published 9:04 pm Thursday, August 22, 2013

The press relying on government for a “shield law” is like antelopes relying on the lion for 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.

“The United States Senate is currently considering the Free Flow of Information Act, a federal media shield law that would protect journalists and media organizations from revealing the identities of their confidential sources,” explains law professor Larry Atkins in the Huffington Post. “It’s the third time that Congress has considered such a federal shield law.”

Like any law, it defines its terms — and its definition of “journalist” is fairly broad: it’s a person “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national or international events or other matters of public interest.”

But Sen. Diane Feinstein wants to amend that passage to read “a salaried agent of a media entity.”

According to Feinstein, “This bill is described as a reporter shield law — I believe it should be applied to real reporters … the current version of the bill would grant a special privilege to people who aren’t really reporters at all, who have no professional qualifications.”

Here’s the problem with that.

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. Feinstein’s amendment would lock them out.

That’s 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 Journa’’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?”

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

Even more troubling are Feinstein’s words about “professional qualifications.” Who decides what those are? Will the government approve only of journalists who earn degrees in the “right” majors or, even worse, go to the “right” colleges? It’s easy to see how public officials might see it that way. Already, President Barack Obama vilifies Fox News, for example, and grants extensive interviews to Jay Leno.

The fact is 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.