The U.S. Congress has been working all year on the development of a federal shield law, which would offer journalists a "qualified privilege against disclosing the identity of sources and turning over information obtained or created in the course of newsgathering." The long-sought protection would allow journalists to work with whistle-blowers and anonymous sources free of the fear that they could be compelled, at the threat of prosecution and punishment, to disclose the identity of such sources.
But now, thanks to an amendment put forward by Senator Chuck Schumer (D-N.Y.) in the Senate Judiciary Committee, a boundary line has been drawn around who shall be shielded, and everyone who plies their journalistic trade as an independent blogger or a citizen journalist has ended up on the wrong side of that line.
Why on Earth did Schumer do this? Schumer's spokespeople were not available for comment. But I've been taking a look at the matter, and from my vantage point, what seems to be at work here is an effort to find common ground between a Justice Department that does not want to expend its resources extending blanket protection to all journalistic entities, and powerful corporate media interests who don't want to expend their dwindling resources keeping their reporters out of the stir. Schumer's amendment creates this common ground by putting up a big sign that reads: NO BLOGGER OR CITIZEN JOURNALIST WELCOME.
Keep in mind: big media has been extensively lobbying for federal shield law protection for some time now. On September 9, over 70 news organizations sent a letter to Senator Pat Leahy (D-Vt.), asking him to not water down the bill, which was wending its way through his Senate Judiciary Committee. Good news for them -- the changes that Schumer made to the bill won't affect them in the least.
For everyone else, the Senate is where all the action is right now. And interestingly, this was the venue where, previously, independent media had their best shot at earning some level of shield protection. History, as it turns out, is repeating itself. Back in 2007, an attempt to enact a shield law failed when the Senate could not get a vote scheduled on its version of the bill. At the time, it was the House version of the bill that was the more restrictive. The current House bill -- H.R. 985, which passed in April of 2009 -- is a virtual copy of the 2007 bill, which, as Sam Bayard at the Citizen Media Law Project notes, "limits coverage of the shield law to journalists who make significant money from their activities":
The term "covered person" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.
Bayard notes that the Senate version of the shield law, by comparison, had a much broader definition of who would be covered under the bill, allowing protection to flow to "anyone who gathers, prepares, or disseminates newsworthy information for dissemination to the public." And that was how the matter stood until this week, when Senator Chuck Schumer (D-N.Y.) threw a monkey wrench into the works.
Via Andrew LaVallee, over at the Wall Street Journal's Digits blog:
The amendment, introduced by Sen. Charles Schumer (D., N.Y.) last week, limits the definition of a journalist to one who "obtains the information sought while working as a salaried employee of, or independent contractor for, an entity-
a. that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
b. that--
1. publishes a newspaper, book, magazine, or other periodical;
2. operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
3. operates a programming service; or
4. operates a news agency or wire service."
In other words, if you don't want to end up getting strong-armed into revealing your sources, you'd better have a boss, you'd better draw a paycheck, and, if you're working on the Internet, you'd better have access to a more "traditional" platform, as well.
There was much outcry. Arthur Bright at the Citizen Media Law Project called it a "disappointment." Markos Moulitsas of Daily Kos opined, "This certainly looks terrible." Zachary Seward at the Nieman Journalism Lab noted that Schumer's amendment "exclude[s] student journalists as well as bloggers with a day job." Marcy Wheeler was bluntest of all, titling her reaction, "Chuck Schumer to Bloggers: 'Fuck You'"
There was also Jay Rosen, beseeching the Huffington Post and this blogger directly, to find out "...who got to Schumer on this crap? Big Media lobbying?"
I looked into the idea that Schumer's amendment was influenced by lobbyists and, indeed, a cursory examination of Schumer's funding sources reveals that he is the go-to Senator when big media wants to make a donation in return for a favor. Kristin Gillibrand (D-N.Y.), whose appointment to the Senate was Sherpaed into being by Schumer is the second-most favored Senator. And both represent those zip codes where many in the corporate media complex lay down their heads at night.
That said, the explanation may not entirely lie with the influence of lobbyists. And in an explanation given to Daily Kos founder Markos Moulitsas, Schumer's office identified other concerns:
Senator Schumer supports a broad protection that applies to anyone who engages in the practice of journalism, including citizen journalists. He believes it is the nature of the activity that should qualify someone for the protection, regardless of whether they report for a newspaper or a blog, and regardless of whether they draw a salary or not. His bill, as originally written, reflected that view.
"In an effort to advance the bill through the Senate Judiciary Committee, Senator Schumer has gone along with several changes to his original bill in answer to concerns raised by the White House and his fellow Democrats on the committee. But the senator plans for the final bill to incorporate the broadest protection possible, and he will work to make sure that happens in the end.
Oh, so, it's another one of those situations where we must kill the bill in committee in order to save it in the larger body of the Senate. Schumer's been playing that card a lot lately! He previously offered this scenario after this week's defeat of the public option amendment in the Senate Finance Committee. But there's a difference: Schumer's "everything's going to be okay when we get out of committee" promise on the health care reform bill was an attempt to put a brave face on the defeat of his own amendment. In the case of the shield law, it was his amendment that was passed, setting up the future spectacle of Schumer voting against it at some date in the future. And naturally, such an amendment could have been offered by any of the senators who eventually voted for it.
But what of these executive branch concerns cited by Schumer? Over at the New York Times, Charlie Savage reports that the White House's primary concern is with balancing national security interests against journalistic interests, and their desire for a tilt favoring the former. But, as Savage points out, Chuck Schumer (along with his colleague Arlen Specter) was much more critical of these demands, and much more forthright about it:
The two Democratic senators who have been prime sponsors of the legislation, Charles E. Schumer of New York and Arlen Specter of Pennsylvania, said on Wednesday that they were disappointed by the administration's position.
Mr. Specter called the proposed changes "totally unacceptable," saying they would gut meaningful judicial review. And in a statement, Mr. Schumer said: "The White House's opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation."
What is left to justify this amendment, then? Huffington Post congressional correspondent Ryan Grim, who has also been digging into this matter, tells me that "all signs point to the Department of Justice."
Says Grim: "The DoJ argument would be pretty straight forward: everybody is conceivably a citizen journalist. Therefore, if they were covered by a shield law, there would be nobody that the DoJ could subpoena for information or eyewitness testimony. The question is where you draw the line and they're drawing the line at professionals. If you include amateurs, do blog commenters count? If not, why not?"
But let's recall how the bill defined protectees prior to Schumer's amendment. Sam Bayard's take was that protection extended to, "anyone who gathers, prepares, or disseminates newsworthy information for dissemination to the public." To my mind, the word doing all the heavy lifting is "newsworthy". That's where the line gets drawn: whether or not the content itself carries a discernible intrinsic or potential value. Schumer's amendment shifts the "value" equation entirely, from content to content provider. Specific content providers -- those with deep pockets, corporate hierarchies and access to multiple platforms -- make the cut. Anyone bereft of these amenities don't, regardless of what they might be reporting.
What sort of journalist is excluded? Marcy Wheeler points out "Even free-lance writers or people like IF Stone (in the period when he ran his own newsletter) would be excluded from this definition of journalist." Yeah, I'll be honest: I don't feel comfortable with that. And Wheeler's even less at ease:
Now, I'm on the record as a skeptic that this new law is going to work out the way the media thinks. I fear that the national security exemption will mean the law will protect people like Judy Miller mobilizing smears or the Rent-a-Generals spreading propaganda, but not protect Dana Priest or James Risen and their sources.
Or... even a Marcy Wheeler, when you think about it!
Naturally, with enough linguistic dexterity, this can all be spun and sold as a public good: our beloved professional rakers of muck will maintain their level of protection, and taxpayers will be spared the expense of defending everyone who starts a blog and begins reporting ad hoc. The problem here is that those very ad hoc citizen journalists are, more and more, beginning to fill the reportage vacuum that's expanding as newsroom budgets contract. I can't help but wryly note that when big corporate and political interests start throwing their weight around, it's actually the media titans who are more apt to sell out -- just threaten them with taking away the access they crave above all else, and capitulation is certain to follow.
Surely a line must be drawn somewhere. By the looks of things, however, a ton of vital reporting is going to be left outside the boundaries, vulnerable and marginalized.
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