After the media caught wind that the Department of Justice had covertly gathered over two months’ worth of emails and phone records from the Associated Press, President Obama issued an apology to the irate reporters in the form of the Free Flow of Information Act.
This is a press-shield bill, which means that it would protect members of the press, reporters, and journalists from being forced to divulge their sources. Such a law has been pushed by the media for years, and it was proposed in 2009 but never reached a general vote. Representatives Chuck Schumer (D-N.Y.) and Lindsey Graham (R-S.C.) presented this bill to Congress, but as it stands now, Republicans are skeptical that this bill is a good idea.
And, while I almost never say this, they may be right.
A press-shield law in theory sounds like a way to protect First Amendment rights but, in practice, it could be very different. First of all, such a law would require concretely defining exactly what makes an individual a “journalist.” In the age of online reporting, political bloggers, and a 24/7 news cycle, how can the federal government distinguish between who deserves this protection and who doesn’t?
The short answer is, it can’t.
We only have to look to state-level press-shield laws to see how big a problem this really is. In Indiana, you are a journalist only if you are connected to a newspaper, wire service, or radio or television station. All online political news sites, including popular ones like Slate and Salon, would not be covered. Kentucky only protects newspaper, radio, or television, while the District of Columbia regards journalists as anyone involved with disseminating information to the public through “printed, photographic, mechanical, or electronic means.” Nebraska is just looking out for “the free flow of information.”
On the national level, this dissonance is magnified many times over. While Senator Schumer has tried to include online bloggers and make the act much more inclusive, severe blowback has led to the new definition of a journalist as someone whose work constitutes a “substantial portion” of their income. This leaves out thousands of individuals who are still working as political media, and by excluding them, the bill actually puts them and their work at risk from intrusion.
Furthermore, if the government is allowed to define exactly who is a reporter, it can also define who isn’t. Senator Schumer has defiantly declared that this press-shield law would in no way protect WikiLeaks, one of the greatest if most notorious examples of the power of the press in the past few years, because it isn’t “legitimate” enough. It’s incredibly worrying that the government can choose whom to protect and whom to leave vulnerable, particularly when that protection can so easily be used to target those who speak out against the government itself.
Another worry is the fact that the act contains a gaping national-security exemption. If the government believes that the information it is seeking is in the interest of the country’s national security, they would still be able to covertly acquire that information. And what this means, at the end of the day, is that under the Free Flow of Information Act, the Department of Justice would have still gathered the Associated Press’s correspondence in exactly the same way.
So what are we doing with this bill again?