Controlling the Flow: Thoughts on the Free Flow of Information Act

Selectively protecting some journalists, and not journalism as a whole, is detrimental to democracy and civil society. Why then do the majority of American mainstream media resources support this Act?
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Co-authored by Eric Matthies -- Co-Producer/Director of the documentary film, Killing The Messenger: The Deadly Cost of News

"Our liberty depends on the freedom of the press, and that cannot be limited without being lost."
― Thomas Jefferson

On Thursday, the Senate voted on how to define 'journalist'. In a 13-5 vote on the Free Flow of Information Act, they determined a "covered journalist" as "an employee, independent contractor or agent of an entity that disseminates news or information." While many Mainstream Media outlets support the law , it does little to benefit the freelancers who frequently provide robust coverage of under-reported stories. Further, it specifically targets those who publish in what some members of Congress would deem questionable outlets, such as watchdog groups or independent blogs. It's worth noting that the new law would not necessarily cover an independent journalist like Alexa O'Brien, who almost singlehandedly ensured in-depth investigative reporting on the Chelsea Manning trial. Ironically, major news outlets that couldn't bother to send a reporter to court frequently cited much of O'Brien's 'blogging.'

Anyone not on an approved payroll who performs an act of journalism is in danger under the falsely labeled "Free Flow of Information Act", which is quickly making its way into law. Specifically to the FFIA, the individual would have to have been employed for one year within the last 20 years, or for at least three months within the last five years. If the criminalization of independent reporting succeeds consider for example what it will mean in conflict zones.

Dahr Jamail was working as a mountain guide in Alaska when he became frustrated about the news coverage coming out of Iraq in 2003.

I decided basically to just figure out how to get into Baghdad and start reporting and that's what I did. The need for that information was great enough that after a couple of weeks, I actually started getting picked up by BBC World Service to start doing some radio work and write for some other independent sites about what was going on and then by my second trip which coincided with the siege of Fallujah in April of 2004, I was having so many requests from outlets around the globe for stories that I could barely even keep up and that's basically how it kicked off and so that's how it came to be. You go out uncensored, as an independent journalist, talking with your interview subjects face to face.

Independent journalists are vital in getting information to the public, and are often cost-effective solutions for major media outlets who look for people already in an area instead of having reporters parachuting in.

From the British journalism advocacy site, Travis Lupick writes:

Young and adventurous freelancers are a great deal for international media outlets. Sending a staff writer into a conflict zone is a very expensive affair. And God forbid, if an employee is kidnapped, a company can easily find itself on the line for millions of dollars. But if a freelancer is willing to get themselves in and out of Syria at no risk to a publisher's wallet, a lot of editors are going to be happy to take those stories.

And to be clear, controlling information the government doesn't approve of is not a new fight for freedom of the press. Dahr states, "The U.S. military, the Pentagon have had a very aggressive policy against those of going around reporting on things that they don't want to see reported."

Shield laws are not designed specifically for the protection of reporters, rather they are designed to protect sources and embolden them to come forward. In it's currently worded form, the Free Flow of Information Act is an ironic misnomer as it really intends to shield the politicians from pesky journalists looking to unearth wrongdoing.

Jay Rosen, an advocate for citizen journalism:

Transparency means we can see in to government, we can find out what it's doing. We can look at what is happening in our name. And accountability means once we look in, we can throw the bums out, we can get different people in there if the ones who are there now aren't doing their job. So when transparency is interfered with, when opacity takes over, when we can't see in, when we can't find out what's going on, when therefore we can't hold people accountable, it's not only frustrating, but it wears away at the very heart of self-government and what happens is that slowly, and this can take many years, but very bit by bit, the legitimacy of government self wears away and I think this is a huge problem in our time. People are not accountable; people in power are not accountable.

David Schlesinger -- formerly the Editor in Chief of Reuters -- in an interview for Killing The Messenger: The Deadly Cost of News, in regards to earlier versions of the federal shield law said:

I'm an American by birth. And one of the great things about being an American is that you grew up with the first amendment. And one of the things about the first amendment is that you can be a self-declared journalist. I think that's wonderful. When I entered the profession, I didn't have a journalism degree, I didn't study it. I declared that I was a journalist, I wrote my piece, and there I was. So, one of the great things about the ability to self-declare, is that you can have hundreds of thousands of people as journalists who were never journalists before. The flip side of that is that governments now have hundreds of thousands of people who they didn't fear before, that they have to fear. They have so many voices, and many governments around the world fear those voices and they fear the control of information and the control of discourse getting out of hand.

Selectively protecting some journalists, and not journalism as a whole, is detrimental to democracy and civil society. Why then do the majority of American mainstream media resources support this Act? Perhaps after ten years of trying to get such a law enacted, a compromise must be accepted. In talking points provided by The American Society of News Editors, FFIA would be:

... a much-needed federal "shield" law that would offer, for the first time, a statutory reporter's privilege that could be invoked when federal authorities seek information, including the identity of a source, from a reporter engaged in newsgathering activities."

The bill as proposed would provide clear and meaningful protection at the federal level for journalists against improper intrusion into the free press.

Neither group addresses the Senate's version of the act's muddled definition of who constitutes a 'journalist' and both avoid any discussion of the need for such a law to protect journalism. Without a union, guild affiliation or an accredited paycheck freelancers, independents, bloggers and self-declared journalists -- even those first-timers reporting from conflict zones or under-reported territory who might find publication in mainstream outlets -- are not protected. In fact, the law would do little to protect established journo's like James Risen or AP's newsroom phonelines, depending on how the government chooses to interpret its own loose definitions.

If the government truly wants to support a free press, they would do well to remember that Freedom of speech is the liberty to speak openly without fear of government restraint. The First Amendment and the Freedom of Press is not just for those with journalism degrees and a paycheck, but for all citizen's right to publish. Our government needs to craft a law that protects acts of journalism rather than targeting the messengers and intimidating sources.

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