Press shield has holes
Such a law would give government the right to define who is a journalist, and who is not.

Reuters

A teleprompter used by U.S. President Barack Obama is pictured among journalists during a news conference in the East Room of the White House in Washington, January 14, 2013.

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Article Highlights

  • In typical Washington fashion, the proposed shield act would do nothing to prevent the abuses that make it necessary.

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  • The proposed shield law "still leaves an unanswered question. ... What is a journalist today, 2013?"

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  • Proponents of journalist shield laws argue that regulations limit the power of govt by protecting the 1st Amendment press rights.

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In response to the acknowledged abuses of his own Justice Department, President Obama has urged Sen. Chuck Schumer, D-N.Y., to reintroduce legislation for a "journalist shield law." And in typical Washington fashion, the proposed act would do nothing to prevent the abuses that supposedly make the law so necessary.

We saw a similar response to the horrible Connecticut school shootings last December - a raft of laws that wouldn't have prevented the tragedy in the first place. It seems that whenever government fails to do what it is supposed to do with the laws already on the books, the answer is to give the government even more power.

Ah, but proponents of journalist shield laws argue that such regulations actually limit the power of government by protecting the First Amendment rights of the press. But that begs the question. A journalist shield law must define who is a journalist and who isn't.

On May 26, Sen. Dick Durbin, D-Ill., said on Fox News Sunday that the proposed shield law "still leaves an unanswered question. ... What is a journalist today, 2013? We know it's someone who works for Fox or AP, but does it include a blogger? Does it include someone who's tweeting? Are these people journalists and entitled to constitutional protection?"

Part of the problem stems from Durbin's apparent suggestion that the First Amendment protects only a free press. It also protects free speech, free assembly, freedom of worship and the right to petition the government for the redress of grievances. We all have these rights. The Washington Post's Bob Woodward has no more rights than my dentist.

Who is 'covered person'?

And this is what is wrong with the idea of a federal shield law. One proposed version of the law says a "covered person" is someone who "for financial gain or livelihood, is engaged in journalism." In other words, a journalist is a professional. So, the government gets to decide who's a "real" journalist. That's a horrifying expansion in government authority.

Worse, many judges won't even go that far. For instance, an Illinois judge ruled last year that the popular website TechnoBuffalo didn't qualify for the same protections the state confers to "real" journalists. Cook County (Ill.) Circuit Judge Michael Panter said, "The content on TechnoBuffalo's website may inform viewers how to use certain devices or offer sneak peeks of upcoming technology, but that does not qualify the website as a 'news medium' or its bloggers as 'reporters'."

So when this newspaper informs its readers about new gadgets or gives sneak peaks at upcoming technologies, that is journalism. But when a moneymaking website does the same thing, not so much.

In 2009, when the Free Flow of Information Act was last under consideration, Durbin and Sen. Diane Feinstein, D-Calif., pushed to have bloggers and other second-class journalists stripped of protections, eliciting outrage from the left and right. Their stated concern was that bad actors - terrorists, fraudsters, publicists - would claim status as journalists in order to cause mischief and harm. Some critics, though, sniffed a haughty bigotry against "citizen journalists."

No to 'citizen journalists'

Columnist Leonard Pitts captured this attitude well when he proclaimed in 2010 "I do not believe in 'citizen journalism.' Yes, I know that's heresy. ... Yet I remain convinced that, with exceptions, citizen journalism is to journalism as pornography is to a Martin Scorsese film; while they may employ similar tools - i.e., camera, lighting - they aspire to different results."

Pitts' ire was aimed at figures such as James O'Keefe, who has embarrassed a lot of liberal institutions - Planned Parenthood, National Public Radio and others - with his hidden camera operations. With remarkable brevity, Pitts managed to include nearly everything that is mule-headed in this debate. 60 Minutes became a journalistic icon by using hidden cameras in stings. But when citizen journalists use the same methods, it's akin to pornography. Why? Because the results aren't to Pitts' liking.

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. And that points to the heart of the matter. Journalism isn't a priestly caste or professional guild with special rights. It is an activity we all have a right to partake in. Whether it's a blogger with a virtual tip jar exposing malfeasance or 60 Minutes making fraudulent charges about George W. Bush, there will always be good journalism and bad journalism.

It will undoubtedly be necessary from time to time for the government to distinguish between the two. But those instances should be exceedingly rare, and they should never hinge on who the government thinks is qualified to be a journalist in the first place.

Jonah Goldberg, fellow at the American Enterprise Institute and National Review contributing editor, is author of The Tyranny of Clichés, now out in paperback. He is also a member of USA TODAY's Board of Contributors.

 

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