Cross-posted from Stanford Lawyer.
Imagine that you are participating in a protest on a university campus. The campus police ask everyone to leave. Some protestors refuse to move, and suddenly they are doused with pepper spray by campus police. You pull out your cell phone and start recording, asking protestors to describe what happened. After some editing, you post the video to YouTube. But according to the two federal shield laws being considered by Congress, you likely would not qualify as a journalist—and consequently would not enjoy the right to protect your sources.
While working as a legal intern at the Electronic Frontier Foundation (EFF) this summer, I made the case that congressional federal shield bills failed to protect the very individuals they purported to—journalists. A little background: Shield laws, or reporter’s privilege laws, provide statutory protection so that journalists cannot be compelled to disclose their confidential sources. While 49 states and the District of Columbia have shield laws in place, there is no federal shield. After failed attempts in 2007 and 2009, Congress tried again this summer to create a federal shield law. But both the House and the Senate bills limited the scope of who would qualify as a journalist due to their restrictive language that only individuals who do journalism for “financial gain or livelihood” or who practice journalism on a “regular” basis could qualify. In the Senate, Dianne Feinstein (BA ’55) introduced an amendment that would have restricted the definition even further by requiring in one definition of journalist that an individual be “salaried.”
These limits are dangerous because they threaten to exclude bloggers, freelancers, and citizen journalists—all of whom do journalism but have neither the institutional resources nor the weight of tradition with which to protect themselves. Indeed, at the moment when journalism is changing dramatically (consider that Amazon.com’s CEO Jeff Bezos purchased The Washington Post), the law should not calcify a vision of who journalists were; it should accommodate who they are and will become. If we are to have a federal shield law, it should turn not on defining the profession of journalist but instead on defining the practice of journalism. This functional approach protects the act of journalism, enabling the law to maintain its responsiveness to a rapidly changing media landscape.
Following critiques by EFF and others, Senator Feinstein introduced and the judiciary committee passed a compromise amendment that broadened the definition of journalist. It dropped the problematic requirement that a journalist be “salaried,” a huge victory for non-salaried and non-institutional journalists. Though not perfect, this bill is better than where we were in June.
To its credit, Congress has been wrestling with a weighty question: Who, exactly, is a journalist? This is a crucial question that academics and policymakers are contending with as we attempt to preserve the public good of a free press in an era where the means of technological production and consumption have been radically decentralized. Indeed, what communication scholars describe as the one-way transmission model of media (sitting in front of the TV and watching Walter Cronkite) is effectively over. Its demise offers opportunities to improve upon the limitations of that model, by introducing new diversity in voices, economic models, and distribution but also creates challenges by destabilizing long-standing professional roles and norms.
The role for the law in this context is not to codify a version of the press as it existed in the mid-20th century, but to be responsive to the fact that the press is experiencing dramatic cultural and economic change. Importantly, the 20th century professional press of Murrow, Woodward, and Bernstein was itself new; the press of the 18th and 19th centuries did not operate within the same norms or under the same ownership model. What if our laws had prevented the rise of professional journalism in the 20th century? That is precisely what a narrow federal shield law excluding bloggers, freelancers, and citizen journalists would do for the 21st. Instead, the law should be responsive and flexible, facilitating change that is already happening and ensuring that whatever type of journalism we will have is faithful to the democratic purpose of our constitutionally protected press. SL
Morgan Weiland is the first joint degree student at Stanford Law School pursuing a PhD in the Department of Communication. She is a Stanford Graduate Fellow and Student Fellow at the Center for Internet and Society (CIS). She writes about journalism at CIS and the Freedom of the Press Foundation.