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The Senate Is Busy Creating a Privileged 1st Amendment Club for 'Official' Journalists

The Senate is skirting the substantial investigative role served by independent journalists, bloggers, and nontraditional media.

Photo Credit: Filipe Matos Frazao


On September 12, 2013, the U.S. Senate Judiciary committee narrowly defined who the law should consider to be a journalist, by  amending the proposed Free Flow of Information Act (“FFIA”). The FFIA is a “shield law” that protects journalists from having to reveal their confidential sources when confronted with court subpoenas. The amendment changed the language of the bill from protecting the activity of journalism to protecting the  profession. Journalists are now limited to those employed by, recently employed by, or substantially contributing to media organizations for certain minimum durations.

This maneuver skirts the substantial investigative role served by independent journalists, bloggers, and nontraditional media, who are left unprotected by the statute. It also expressly excludes whistleblower organizations. By not extending protection to a vital segment of investigative newsgatherers, the amended FFIA falls short of providing real benefits. More fundamentally, the distinctions created by the bill reinforce a privileged club for journalists. In essence, the government is licensing the press, and treading down a path that  courts have for decades cautioned “present[s] practical and conceptual difficulties of a high order.”

The Supreme Court, in 1972 in  Branzburg v. Hayes, held that the First Amendment provides no separate privilege for reporters. This was largely due to the practical difficulty, even before the Internet, of defining who is or is not a journalist. Justice White in his  concurring opinion discussed that “[t]he informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public.”

More recently, in the 2011 case  Glik v. Cunniffe, which involved a man videotaping police using his cell phone, the First Circuit Court of Appeals  stated “Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

This open view of journalists is shared by academics like UCLA Law Professor Eugene Volokh.  He has argued that “[f]reedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.” After all, the First Amendment was designed to escape the official licensing system for press that existed in England in the seventeenth century. The right of the press is as much a right of institutionally-backed journalists as it is of lone pamphleteers.

The original FFIA, which took a functional view of journalists, adhered much more closely to the current academic trend—that journalism is an  activity, not a  profession. Some like Professor Paul Horwitz  propose alternate theories such as varying the rules from medium to medium to reflect different standards in different fields. These theories, while not perfect, are significantly less controversial than narrowly defining rights in ways that courts have consistently held run afoul of the First Amendment.

Another logical pitfall of the law is its explicit exclusion of whistleblower organizations, like WikiLeaks, from its narrow definition of journalism. It “does not include any person or entity . . . whose principal function . . . is to publish primary source documents that have been disclosed to such person or entity without authorization.” Why exclude these? One possibility is "protecting national security"—but the logic behind this is dangerous. It is the same as forcing reporters to reveal their sources when stories inconveniently expose wrongdoing. Claiming that document-sharing organizations must reveal sources  is fundamentally indistinguishable from forcing investigative reporters to do the same. And if any form of investigative journalism (including publishing documents) presents a clear and imminent danger to U.S. security, it can be dealt with on a case-by-case basis.