New York Sen. Chuck Schumer was trumpeting a proposed media shield law today, saying there are enough supporters that it may be able to pass this year.
Schumer mentioned that in addition to the Democrats, the bill is supported by five Republicans and the White House.
The proposed law would protect journalists from having to reveal confidential sources when they publish information embarrassing to the Powers That Be.
Sounds like a good idea on first blush, but as you might expect with any such bill supported by the White House, the details show that the bill has little to do with empowering factual reportage.
In the first place, the bill’s protections are only parceled out to specific people, dubbed “covered journalists” in the bill’s language. A “covered journalist,” according to the Associated Press, is “defined as an employee, independent contractor or agent of an entity that disseminates news or information.”
So in other words, you’ve got to be working for someone, other than yourself, who has a lot of money. Considering independent contractors technically work for themselves, there’s already a built-in potential loophole for any freelancer who investigates a story on spec, without a prior commitment to publish.
It gets better.
The individual would have to have been employed for one year out of the last 20, or three months out of the last five years. That doesn’t sound too bad, but it rules out a writer who stumbles across “the story of a lifetime” and doesn’t have a track record as a journalist.
Also, the information in question must be published in an approved news medium, according to AP: “newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program; magazine or other periodical, whether in print, electronic or other format; or through television or radio broadcast … or motion picture for public showing.”
Not covered are tweets, blogs or postings on social media by anyone considered a “non-journalist.”
So, take the example of one of the Huffington Post’s “contributors,” who are not paid for their work, writing an article based on information from his friend who works in a government agency. The information may be important and may kick off a national news media feeding frenzy, in fact, everybody could agree that it was absolutely the right thing to release the information, but the contributor could still wind up rotting in jail under this “shield” law.
Asked about the case of Wikileaks founder Julian Assange, Schumer said he wasn’t sure Assange would qualify as a “covered journalist” under the law. He had a similar answer when asked about Glenn Greenwald, who blew the lid off the federal government’s domestic spying programs using information leaked by Edward Snowden.
“It’s probably not enough protections to (cover) him, but it’s better than current law,” Schumer said.
Why is it “better”?
According to Schumer, “There is no first amendment right for gathering information.” The First Amendment covers freedom of speech and the press, both of which imply the right to gather information. Courts for more than 200 years have held that to be the case, although some have been reluctant and others have attempted to abuse their power.
And this bill doesn’t really protect information gathering, it protects certain people. Those people happen to be the acquaintances, friends and in some cases even family of government employees who might be prone to leaking information, either individually or on orders from higher up.
Former CBS reporter Sharyl Attkisson, just about the only journalist in America who’s done any investigation at all into Benghazi, said in a radio interview, “I think people would be surprised at the level of cooperation reporters have in general with politicians.”
She explained how when she sought information from the White House and couldn’t get it, she would sometimes call up CBS’ White House correspondent, who would call the press office, which would then take note of the question and tell the correspondent to ask it at the next briefing.
Referring to a kerfuffle earlier this week when a reporter from Phoenix said the White House prescreens questions from reporters, which press secretary Jay Carney hotly denies, Attkisson said it wouldn’t surprise her if that happened regularly.
It’s not just run-of-the-mill leakers who use the press. Sometimes politicians will play both sides of the street by saying things off the record, then denying the same thing in a public news conference. In the Vietnam era, Kissinger was a famous one for doing so.
Washington thrives on leaks. For example, in October, Sen. Dick Durbin blogged during the government shutdown about an alleged Republican congressman who during a meeting told President Obama “I can’t stand to even look at you.” Jay Carney was asked about it and denied it happened. Durbin stood by his statement.
The Huffington Post, based on leaked information, reported that it was Sen. Harry Reid who told a meeting of Democrats that Republican Sen. Pete Sessions had made the initial statement to Obama. Sessions denied it, but then the White House took the blame, saying that it had made a “miscommunication” when telling Democratic leaders, including Reid, about the meeting with the Republicans. The original leaker-slash-miscommunicator was never named, though I would put money on the vice president’s office.
This proposed shield law is not about protecting free speech or a free press. It’s about throwing some bones to journalists upset by the AP phone record scandal, increasing legal cover for unscrupulous politicians and reducing First Amendment protections for everyone else.