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Acts of journalism: Why we need to be skeptical of a shield law for professional journalists

October 22, 2013

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A so-called federal “shield law” for journalists — legislation that would protect them from having to reveal their sources when pressured to do so by the government or the courts — seems like a great idea on the face of it. Journalists of all kinds have been targeted by the Obama administration in relation to leaks of classified information, and there are many supporters of such a law. As we’ve explained before, however, the big problem with such protections is that they require the government and/or the courts to decide who is a journalist.

Why is that a problem? Because journalism is no longer something that is only practiced by a specific group of people working for a relatively small and easy-to-define group of publications or media outlets — newspapers, TV networks, and so on. Whether traditional journalists like the term “citizen journalism” or not, the reality is that blogs, social media and other tools give virtually anyone the ability to perform what Andy Carvin of NPR has called “random acts of journalism.”

The idea isn’t so much that these kinds of acts — like the computer programmer in Pakistan who live-tweeted the raid on Osama bin Laden’s compound, or the live reports of uprisings in Egypt and Tunisia — replace traditional journalism. Instead, they broaden and expand it. How do we ensure that these kinds of acts are also protected? Media writer David Carr of the New York Times has argued that the shield law is better than nothing. But is it?

In a recent research report (PDF link) from the non-profit media organization Free Press, staffer Josh Stearns goes into some depth on this topic, providing a number of tangible examples of how difficult it is to come up with legal definitions that cover all of the potential ways in which individuals can act as journalists — without fitting what we normally think of as the journalist label:

  • Nineteen-year-old Karina Vargas was taking the train home in California when she saw police using excessive force on a young man at the station in Oakland — so she pulled out her cellphone and recorded a video of the conflict, which resulted in the shooting of Oscar Grant. Police tried to confiscate the video but she refused, and the footage was later used in a courts case against the officer who shot Grant.
  • Justin Auciello of New Jersey — an urban planner with no background or experience in journalism — started a Facebook page about hurricane damage on the Jersey Shore that evolved into a full-fledged news site for journalism about the under-covered area, one that has been honored by the White House for its community service and is used by other media outlets for research in the area.
  • Lee Roy Chapman, am amateur historian in Oklahoma, started researching the founder of Tulsa and discovered information about him that had never been reported before, and spent years digging through public records in several states to pull together a story about the violence and racism of the city’s founder that no mainstream media outlet in the state would likely ever have printed.

The point about videotaping or recording police and other authorities and then making that information public is a crucial aspect of this issue, since there have been a number of cases in which the police have confiscated such videos under the mistaken impression that they are legally allowed to do so. In a decision in one such case, Justice Kermit Lipez of the First Circuit Court of Appeals described why the First Amendment’s protections for free speech need to apply to everyone, not just accredited journalists, saying:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders [and] and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

In a nutshell, that’s the biggest problem at the heart of the shield-law debate: how do we define who is or isn’t a journalist? Inthe original version of the Senate billproposed by Dianne Feinstein, there was a long series of tests that a journalist would have to pass in order to be protected — including the length of time spent working in some kind of journalistic capacity, as well as the requirement that covered journalists must be paid by some media organization in return for their work. None of the examples used in the Free Press research paper would qualify under that definition.

The Senate bill’s definition was broadened somewhat before it was passed by the chamber in September: as the Electronic Frontier Foundation noted in an overview of the legislation (which still has to get past the House of Representatives), the definition no longer requires that a journalist be a “salaried employee” or a media organization, and it gives judges a wide degree of latitude to define someone as being covered even if they don’t fit the description, provided the court believes “that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities.” Read more at Paid Content.

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