The Free Press, Mankato, MN

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September 24, 2013

Shield law MUST provide broad protections

Why it matters: A federal journalism shield law would be beneficial but it shouldn't so narrowly define a 'journalist' as to narrow first Amendment protections.

On the heels of revelations that the Justice Department had seized the phone records of Associated Press reporters and had traced the emails and calls of a Fox News reporter, Congress seems willing to provide federal protections for journalists and their sources.

Although many states, including Minnesota, have so called “shield laws” to protect journalists and their sources, there is no such protection from federal subpoenas or court orders forcing reporters to reveal confidential information or sources.

Because the Supreme Court has never ruled that the First Amendment protects journalists from being compelled to identify confidential information, the federal government has at times gone after journalists to learn who their sources were.

Under proposed legislation in Congress, journalists would not have to comply with subpoenas or court orders forcing them to talk unless a judge first determines a crime has occurred and the government has exhausted all other alternatives. Final bills could be approved by the end of the year.

While there is general support for a federal shield law in Congress and by journalism organizations, a key sticking point has been the seemingly simple question of defining “journalist.”

The draft bill defines a journalist who has a “primary intent to investigate events and procure material” to inform the public. All agree a reporter working for a newspaper, news service or broadcast outlet would be protected. Harder to pin down is defining if bloggers and others who use the Internet to disseminate news would be protected.

Some Senators would like to broaden the definition of journalists under the law while still others would like to narrow it even more, fearing that too-broad a definition could protect groups like WikiLeaks.

The existing language in the bill seems to do a good job of balancing various concerns, providing a fairly broad protection to traditional and new journalists without getting tangled up in minutia. And the legislation would provide a safety valve in tricky cases, giving federal judges the discretion to extend protection to people who might not meet the exact criteria of a “journalist” under the bill’s definition.

In the end, it is better to maintain a broad definition of journalism. By being too specific, any law aimed at protecting journalism could in fact limit the definition of freedom of speech and the press under the First Amendment, by excluding some people from protections.

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