Wednesday, November 16, 2005
Open Source Media and press shield laws
I am at the launch event of Open Source Media, the erstwhile Pajamas Media founded by Roger L. Simon, Charles Johnson and others (sitting with BoifromTroy and Solomonia!). The topics for the day will include, among other things, a discussion of the proposed federal press shield law, the Free Flow of Information Act sponsored by Richard Lugar, between Glenn Reynolds and Judith Miller, previously of the New York Times. The mainstream media has long pursued such a privilege but the federal government has never been able to get to it. The Plame investigation has put new life into the effort with its spectacle of subpoenaed reporters and the imprisonment of Ms. Miller.
I strongly support the passage of a federal shield law to protect people who rely on confidential sources in their writing and speaking, but take great exception to the version promulgated by Senator Lugar. The Lugar bill is essentially a license to practice journalism, nothing less than the establishment of a federal guild. It is an insidious bargain between elected officials, who greatly want the publicity afforded to them by the institutional press, and the media corporations that want to relieve pressure on their reporters and editors would prefer to avoid confronting the government that regulates them. Lugar himself essentially admitted this in a speech before the Inter American Press Association last month:
Lugar wants to give specific people "super First Amendment" rights, and in turn he is sucking up to them (as any Senator worth his salt would do).
As I have written before, the FFIA, in its current mark-up (we understand a new version is coming) provides that
Note that it is not at all clear that if this law were enacted it would have helped Judith Miller. She was not protecting the name of her source, or even the source's version of the conversation between the two of them. She was protecting only her version of the conversation between the two of them, and that would not have triggered the privilege.
Beyond the specifics of the Miller/Plame case, there are at least two huge problems with this proposed statute. First, it grants this privilege only to "covered persons," the definition of which I will address imminently. Second, it creates an absolute shield against prosecutorial inquiries that seek to disclose the identify of a source unless "disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security." In the absence of a threat to national security, no federal court would be able to compel any "covered person" to disclose any source under any circumstances. Since national security and individual security are manifestly different, the law presumably would shield a reporter who knew that a source was about to commit a murder or rob a bank. Does anybody think that such an expansive privilege is necessary to the functioning of our republic?
Far more troubling, though, is the definition of "covered persons," which describes a status rather than an activity:
In order to gain the benefit of the protection, an individual must be either an employee of or have a contract with "an entity" that publishes in certain pre-defined formats ("newspapers, books, magazines"), "operates" a radio or television station or network, or "operates" a wire service.
There is no protection under the statute for individuals writing and publishing without any pre-established relationship (employment or contract) with "an entity" that engages in the specified activities.
So, for example, if you are a free-lance journalist working on spec, the FFIA would not protect you. If you are a professor writing a book for which you do not yet have a publisher, it is hard to see how you would be protected by the FFIA. If you are a blogger who writes for no financial gain but simply because you take your role as a citizen seriously, you are out of luck. (Note that it may well be that bloggers who have enlisted with Open Source Media or other such organizations will gain the benefit of the statute by virtue of their contract with OSM.)
The FFIA is not, therefore, concerned with protecting the practice of journalism or, for that matter, the "free flow of information." It is concerned with protecting a class of people hired by media corporations as defined by the government. The FFIA grants a license to practice journalism, but it is only available to people who work for "entities" that do specific things. As it happens, these same entities are in a position to enhance the political fortunes of any politician that supports the granting of this license.
It would, of course, be fairly easy to revise the bill to protect the practice of journalism rather than the status of journalist. My proposed revisions appear below:
By all means, let us enact a reasonable press shield law for people who speak and write about government or subjects otherwise in the public interest. But let's not define that privilege -- and it will be a privilege -- by creating a class of people who are entitled to it. One should gain that benefit by virtue of speaking or writing for public consumption, whether or not a major network, newsweekly or wire service pays you to do it.
I strongly support the passage of a federal shield law to protect people who rely on confidential sources in their writing and speaking, but take great exception to the version promulgated by Senator Lugar. The Lugar bill is essentially a license to practice journalism, nothing less than the establishment of a federal guild. It is an insidious bargain between elected officials, who greatly want the publicity afforded to them by the institutional press, and the media corporations that want to relieve pressure on their reporters and editors would prefer to avoid confronting the government that regulates them. Lugar himself essentially admitted this in a speech before the Inter American Press Association last month:
Bloggers would "probably not" be considered journalists under the proposed federal shield law, the bill's co-sponsor, U.S. Sen. Richard Lugar (R.-Ind.), told the Inter American Press Association (IAPA) Monday afternoon....
Lugar acknowledged that the legislation could amount to a "privilege" for reporters over other Americans.
"I think, very frankly, you can make a case that this is a special boon for reporters, and certainly for their role in freedom of the press," he said. "At the end of the day what we will come out with says there is something privileged about being a reporter, and being able to report on something without being thrown into jail."
Lugar wants to give specific people "super First Amendment" rights, and in turn he is sucking up to them (as any Senator worth his salt would do).
As I have written before, the FFIA, in its current mark-up (we understand a new version is coming) provides that
A Federal entity may not compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under Federal law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to the covered person--
(1) that the party seeking to compel production of such testimony or document has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person;
(2) that--
(A) in a criminal investigation or prosecution, based on information obtained from a person other than a covered person--
(i) there are reasonable grounds to believe that a crime has occurred; and
(ii) the testimony or document sought is essential to the investigation, prosecution, or defense; or
(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter; and
(3) in any matter in which the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security;
(B) compelled disclosure of the identity of such a source would prevent such harm; and
(C) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information. (bold emphasis added)
Note that it is not at all clear that if this law were enacted it would have helped Judith Miller. She was not protecting the name of her source, or even the source's version of the conversation between the two of them. She was protecting only her version of the conversation between the two of them, and that would not have triggered the privilege.
Beyond the specifics of the Miller/Plame case, there are at least two huge problems with this proposed statute. First, it grants this privilege only to "covered persons," the definition of which I will address imminently. Second, it creates an absolute shield against prosecutorial inquiries that seek to disclose the identify of a source unless "disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security." In the absence of a threat to national security, no federal court would be able to compel any "covered person" to disclose any source under any circumstances. Since national security and individual security are manifestly different, the law presumably would shield a reporter who knew that a source was about to commit a murder or rob a bank. Does anybody think that such an expansive privilege is necessary to the functioning of our republic?
Far more troubling, though, is the definition of "covered persons," which describes a status rather than an activity:
The term `covered person' means--
(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--
(i) publishes a newspaper, book, magazine, or other periodical in print or electronic form;
(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or
(iii) operates a news agency or wire service;
(B) a parent, subsidiary, or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in news gathering or the dissemination of news and information ; or
(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.
In order to gain the benefit of the protection, an individual must be either an employee of or have a contract with "an entity" that publishes in certain pre-defined formats ("newspapers, books, magazines"), "operates" a radio or television station or network, or "operates" a wire service.
There is no protection under the statute for individuals writing and publishing without any pre-established relationship (employment or contract) with "an entity" that engages in the specified activities.
So, for example, if you are a free-lance journalist working on spec, the FFIA would not protect you. If you are a professor writing a book for which you do not yet have a publisher, it is hard to see how you would be protected by the FFIA. If you are a blogger who writes for no financial gain but simply because you take your role as a citizen seriously, you are out of luck. (Note that it may well be that bloggers who have enlisted with Open Source Media or other such organizations will gain the benefit of the statute by virtue of their contract with OSM.)
The FFIA is not, therefore, concerned with protecting the practice of journalism or, for that matter, the "free flow of information." It is concerned with protecting a class of people hired by media corporations as defined by the government. The FFIA grants a license to practice journalism, but it is only available to people who work for "entities" that do specific things. As it happens, these same entities are in a position to enhance the political fortunes of any politician that supports the granting of this license.
It would, of course, be fairly easy to revise the bill to protect the practice of journalism rather than the status of journalist. My proposed revisions appear below:
The term `covered person' means--
(A) an [individual or] entity that [is or has engaged in a covered activity during the course of which such individual or entity came into possesion of the information relevant to the proceeding for which testimony or the production of evidence is sought]disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--;
(i) publishes a newspaper, book, magazine, or other periodical in print or electronic form;
(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or
(iii) operates a news agency or wire service
(B) a parent, subsidiary, or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in [a covered activity]news gathering or the dissemination of news and information; or
(C) an employee, contractor, or other person who [engages in a covered activity]gathers, edits, photographs, records, prepares, or disseminates news or informationfor such an entity.
The term 'covered activity' means the gathering, development, and publication (whether by print, electronic, broadcast or other means) of news or opinion intended for an unaffiliated audience.
By all means, let us enact a reasonable press shield law for people who speak and write about government or subjects otherwise in the public interest. But let's not define that privilege -- and it will be a privilege -- by creating a class of people who are entitled to it. One should gain that benefit by virtue of speaking or writing for public consumption, whether or not a major network, newsweekly or wire service pays you to do it.
5 Comments:
By 
Cassandra, at
Wed Nov 16, 02:11:00 PM:
Oh dear.
I am going to have to think long and hard about this one, TH, and then I imagine I'll have something to say :) But doubtless you already know how the mere mention of shield laws gives me a warm, fuzzy feeling.
By Gordon Smith, at
Wed Nov 16, 03:41:00 PM:
Bloggers ought to get at least as much protection as 'journalists' such as Michelle Malkin, Bill O'Reilly, and Brit Hume get. The First Amendment protects the free press (that's us), though I don't think it protects the confidentiality of our sources. If there's going to be special favors thrown out for whomever the legislature deems worthy, then there's going to be trouble maintaining/creating a viable fourth estate.
By Dan Kauffman, at
Thu Nov 17, 02:55:00 AM:
"The First Amendment protects the free press" It also protects the non-press. Or it should.
I am against this shield law in principle, that said, if journalists are going to be made defacto licensed to practice individuals, there needs to be in place not only the privileges but the responsibilities.
Physicians can lose their medical licenses to practice, Lawyers can be disbarred. There needs to be a mechanism to revoke their protected status for cause.
Oh and since "Absence of Malice" has never been a valid defense in a Medical Malpractice Suit? That needs to go as well.
By Purple Avenger, at
Thu Nov 17, 01:15:00 PM:
I would love to see SCOTUS discern any effective difference between a Gutenberg printing press and the internet.
Effectively there is none. The acts of writing and publication are the same now as 500 years ago. The only differences are in the manner of DISTRIBUTION, not production and content -- which is a completely different issue.
By Lanky_Bastard, at
Thu Nov 17, 09:00:00 PM:
Re shield laws: I see a slippery slope where lies are propogated freely by psuedo-annonymous individuals without any accountability whatsoever. Or maybe we're there already. Anyway it's a license to make shit up.
