How big should the ‘shield’ be?

As the August recess for Congress fast approaches, supporters of a federal shield law for journalists are pressing for a vote on the Senate floor. A version of the bill, called the Free Flow of Information Act, passed in the House 398 to 21 in October, and now Senate Majority Leader Harry Reid has promised to take it up before lawmakers leave Washington for the rest of the summer.

Shield laws protect journalists from having to turn over certain information to courts -- such as the identity of a source, story notes or documents. Advocates contend that safeguarding journalists and their sources ensures that the public has access to the information it needs to watch over the government, powerful corporations and other important social institutions. Forty-nine states and the District of Columbia protect some journalists through such laws or court rulings.

Although state shield laws are important, they do not apply when federal law is at issue -- an enormous gap. That means in federal criminal cases (such as the trial of I. Lewis “Scooter” Libby), federal grand juries or civil cases brought under any federal law, journalists and their materials can be subpoenaed. Reporters, and their news organizations, can be held in contempt of court if they refuse to comply -- as happened to former New York Times reporter Judith Miller, who spent 85 days in prison for protecting the source who told her Valerie Plame worked for the CIA.

The Bush White House, which strongly opposes the idea, argues that a federal shield law would weaken law enforcement efforts and jeopardize national security. The administration enlisted key officials in its efforts to head off the bill: the secretaries of Defense, Treasury, Energy and Homeland Security, as well as the attorney general, wrote to Senate leaders to voice their opposition. The White House has suggested that President Bush will veto it. It is unclear whether the bill can draw veto-proof support in the Senate, although some backers -- which include 42 state attorneys general and numerous news outlets -- are optimistic.

There are compelling reasons to support a federal shield law, and reasonable arguments available to skeptics. But neither proponents nor critics are paying attention to a crucial question: Who should be covered by the shield law? That is to say, who is a journalist -- or at least a journalist deserving legal protection?

Not long ago, the boundaries between journalists and the rest of us were relatively clear. If you worked for a TV or radio station’s news division, a newspaper or a magazine -- then you were a journalist. Everyone else was not. Those days are gone. The line distinguishing professional journalists from others who disseminate information, ideas and opinions to a wide audience has been blurred, perhaps beyond recognition.

But a federal shield law would have to take a stand. The version passed by the House defined journalism broadly as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.” Yet it would have limited the statute’s protections to those who practice journalism “regularly” and “for a substantial portion of the person’s livelihood or for substantial financial gain.” The Senate, if it votes at all, appears likely to incorporate similar language.

Should a federal shield law be limited to “professionals,” or ought it reflect a broader view of journalism in the Internet Age? Consider some tough cases.

Josh Wolf, a self-described independent journalist and filmmaker, spent 226 days in jail for refusing to hand over a video recording of a June 2005 riot to federal prosecutors, who sought it for their investigation of damage to a San Francisco city police car. Should Wolf and others like him be protected by any federal shield law?

How about Mayhill Fowler, in her own words “an over-educated 60-year-old woman with politics in her blood,” who has followed Barack Obama across the country? It was Fowler who recorded Obama’s remarks about “bitter” citizens who “cling to guns or religion” and then posted it on the Huffington Post’s Off the Bus blog, sending a charge through the Democratic primaries. Should her audiotapes and notes be available to prosecutors or parties to some civil suit?

There may be defensible reasons for limiting a federal shield law to those “regularly” engaged in journalism and to those who do it for “substantial” financial gain -- terms that are (purposefully) vague and would have to be interpreted and defined by the courts. After all, anyone can create a blog, and Congress surely doesn’t want to make available a journalists’ privilege to anyone with a laptop and an Internet connection. But the reality is that people working outside traditional news organizations -- including some bloggers and citizen journalists -- have become a force in breaking news and analyzing it.

In its deliberation about a shield law, Congress has largely ignored these important changes in our media landscape and elided hard questions about who should be considered a journalist worthy of the statute’s protections. There have been no hearings or substantive debate on these points. The bill’s incredibly broad terminology is a congressional punt; it has left all that hard work to the courts.

At the same time, a federal shield law that limits its safeguards in this way promotes a narrow view of the 1st Amendment. The freedom of the press is a right and a privilege that belongs to all of us. And if Congress enacts a shield law, it ought to be one that reflects the reality that we’re all capable of being journalists now.