“Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals … In contrast, the free-press clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection.” U.S. Supreme Court Justice Potter Stewart, speaking at Yale Law School, 1974.
When the US Senate Judiciary Committee approved SD 226 on Sept. 12, by a 13-5 vote, it took an amazing step in the infringement of a free press. Under the cover of passing a bill to protect journalists from the secret warrant and subpoena excesses of the Department of Justice, it took it upon itself to define what a journalist is.
Sen. Diane Feinstein (D-CA) said “I think journalism has a certain tradecraft. It’s a profession. I recognize that everyone can think they’re a journalist.”
In the era of the nation’s founding, that was truly the case as printers and pamphleteers like Benjamin Franklin and Thomas Paine arose spontaneously and they would probably not meet the Senate definition of a journalist.
The Senate bill defines a “covered journalist” as an employee, independent contractor or agent of an entity that disseminates news or information. The individual would have been employed for one year within the last 20 or three months within the last five years.
It would also cover student journalists or someone with a “considerable amount of freelance work” in the last five years. A federal judge also would have the discretion to declare an individual a “covered journalist,” who would be granted the privileges of the law.
Amazingly, Senator Jeff Sessions (R-Ala) feels that the proposed definition is too broad. It would be expected that a Republican would automatically oppose any definition that can slide down the slope into future regulation. Once the Federal government can define what a thing is, it can also give itself the authority to control its behavior later.
The bill’s language already allows judges to decide who is and isn’t a journalist. A similar vague concept is “considerable amount” when it applies to freelancers. Does that mean paid or unpaid? Most scholarly publishing is done for free and is certainly sporadic. Does this mean that a professor writing for a journalism review would not be considered a journalist? What about persons who decide to begin printing small community papers? Are they covered because they publish?
The real issue is whether or not an individual blogger is a journalist. The work is published and the person is putting out news and information. However, in a one-person-shop, is that person an organization?
Consider this scenario: Someone has been out of the journalism business for several years, maybe to try another career or maybe to raise a family. To re-enter the marketplace, that person might want to go do some new stories on her own to have current writing samples to show prospective employers. Under the Senate’s definition, that person is not a “covered journalist” and would not be protected from electronic surveillance or be able to protect sources.
If I was hiring someone, I would certainly be impressed by the person who was bringing me a scoop, a major exclusive. However, such a person, if out of the game, cannot get back in. If that person is trying to do an expose’, then that person is at greater hazard. Under the Senate’s rules, Clark Kent could never have gotten his first job at the Daily Planet without exposure to secret surveillance, Superman or not.
Would Truman Capote have been considered a “covered journalist” while he was gathering the information for “In Cold Blood?” A book-length project can take years. Perhaps such a writer is earning a living by other means while working on the book project.
Here’s the bottom line: SD 226 is the camel’s nose into the journalism tent. This definition might seem to cover most of us but it if doesn’t cover all of us, especially in this brave new world of individual online journalism, then it endangers ALL of us. If this effort to create a definition doesn’t infringe upon the freedom of the press too much, is it still okay?
Maybe the next bill will infringe further and set minimum circulation levels for “covered publications” or minimum numbers of employees to be a “covered organization.” It sounds a lot like a legal precedent (or more correctly pretext) for harassing inconvenient viewpoints.
Journalists derive their rights to attend public meetings and view public records because all citizens enjoy these rights. Now, each citizen also has the capability to report and comment on those meetings and records.
Any government that feels the need to silence some individuals by creating a chilling effect on citizen-journalists must not want to hear from those citizens. This is the time to contact the members of Congress to let them know that this is not right, not now, not in the future, and certainly not in the times of the founders.
It will never be right. How effective can you be as a watchdog be when the government can decide who can be a watchdog and how long your chain can be?