| One of the authors of the Senate measure, Democrat Charles Schumer of New York, said the bill "would balance national security needs against the public’s right to the free flow of information."
But Schumer's colleague Dick Durbin (D-Ill.) raised the question, "What is a journalist today?"
Durbin went on to ask, "Does it include a blogger? Does it include someone who's tweeting? Are these people journalists and entitled to constitutional protection?”
The House and Senate bills differ on this key point. The Senate version defines persons to be covered as those whose “primary intent” is to disseminate public news or information. The description is lengthy and so broad that it could very well apply to anyone with access to the Internet or social media – which is to say, everyone.
The House measure, introduced by Rep. Ted Poe (R-Texas), is more focused. It defines a journalist as someone gathers and reports news “for financial gain or livelihood.”
Poe’s legislation has broad support. Yet, in the digital age, can a law protecting news flow be so narrowly tailored that it covers only those who earn their living as journalists?
Forty states plus the District of Columbia have some form of shield law, but none exists on the federal level. State protections differ widely, and in many cases utilize antiquated language to describe the function of journalists, by limiting their work to newspapers, magazines and conventional broadcasting. Courts in New Jersey and California, have ruled that bloggers are also entitled to protection under state shield laws.
This goes beyond semantics. One can easily imagine a situation similar, say, to the Boston Marathon bombing, in which classmates of a possible suspect distribute information via the Internet. Should their sources be protected?
Schumer first introduced a version of his shield law in 2009, but it ran into trouble after the online group WikiLeaks began publishing a trove of classified government documents, causing lawmakers to stall on the very question of who deserves protection.
Marshall McLuhan's prescient discussion of the medium and the message still haunts us. To some, format has little or no relevance in defining journalism; what matters is content. To others, the media must be defined, and as such limited, lest shield laws apply to everyone with a mobile device. To authors of the House bill, journalists are only those who earn a living from their craft, meaning they might be expected to bring a measure of professional responsibility to handling of sensitive material.
I’ve written previously that the term “citizen journalist” is an oxymoron, because journalism is a profession for which training is requisite. However, when it comes to protection under law, I do not believe such rights can be restricted as they are in the House bill. If we are to have a federal shield law, then the Senate measure provides the more reasonable approach, even though its definition of journalism is more sweeping.
To answer Sen. Durbin’s questions: Are all tweeters journalists? No. Are those who seek to distribute information entitled to some level of protection from unreasonable government scrutiny? Yes.
(c) Peter Funt. This column was originally distributed by the Cagle Syndicate.
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