Would a Federal Media Shield Law Just Let the Government Pick Who Counts as a Journalist?

Suddenly members of the media (thanks to some heroic, anonymous leakers) are doing what we wish they did every day — they’re enthusiastically skewering the state, and reporting in outraged detail all that the government has done to violate the sacred rights of the people. Maybe we should back a federal media shield law, to protect brave journalists like Glenn Greenwald and the folks at The Washington Post, as well as their sources.

But first, check out a few of the supporters of such a bill. President Barack Obama is a fan of the idea. So is Sen. Lindsey Graham (R-SC). He co-sponsored the return of a dead 2009 law — the so-called Free Flow of Information Act — along with no-intervention-in-your-life-is-too-small Sen. Chuck Schumer (D-NY).

Earlier this week Graham told a collection of reporters that he supported such a law, because it’s important to suss out who deserves protection from federal prosecution. Said the Senator:

“Is any blogger out there saying anything — do they deserve First Amendment protection? These are the issues of our times.”

Graham suggested that yes, media giants get that. But “So, if classified information is leaked out on a personal website or [by] some blogger, do they have the same First Amendments rights as somebody who gets paid [in] traditional journalism?”

Why wouldn’t they?

If there is any group dragging their foot more than traditional media over just who counts as the press, it’s lawmakers. In a world of Julian Assange, Bradley Manning, and kick-ass, semi-“official” bloggers of all stripes, it would be incredibly convenient (yet would look magnanimous) for government officials to decide that yes, of course The New York Times deserves some protection when they publish leaked documents, but your average scrappy blogger does not. And Julian Assange definitely does not, nor does Bradley Manning.

Atlantic Wire notes that the dead 2009 Federal law that Obama is keen on resurrecting would, by their own interpretation, cover bloggers. But we’re already past the age of the long-form blogger. The next big question is social media — Twitter, Facebook, Tumblr — all the ways millions of people now spread information without even the formality of blogging.

And are those who deserve added protection to be protected because they’re news reporters, or because they work for news organizations? Muses The Atlantic:

Let’s say that a person regularly shares news stories over Twitter. He looks for interesting articles, composes a summary and a link, tweets it out. One day, a friend who works for the government sends him a classified document. The person puts that up on a file sharing site and tweets a link with a description of the file. Does that person deserve protection as a journalist? If he posted it to his blog where he comments on news items, would he then? What if he worked for Fox News, but not as a reporter?

Another example: A woman who doesn’t usually tweet about the news shares a photo of the failure of a top secret weapon, sent to her by a friend in the military. Should she be protected? Is a person who stumbles onto something newsworthy a journalist?

And even within official outlets, there’s going to be a hierarchy. Huffington Post is official enough to warrant an invite to Eric Holder’s off-the-record chats about the press and the Department of Justice. But, what about student media? Or bloggers who have other jobs ? According to a U.S. A. Today, the House version[pdf] of the shield law wouldn’t protect either of those. They highlight the case of student journalist Josh Wolf who was jailed for 226 days when he refused to hand over protest footage he had taken.

Like any other institution, the press too often seems to feel that if everyone is the press, then it somehow diminishes their unique power and responsibility as gatekeepers of information.

Wall-Street Journal columnist James Taranto was a recent exception to this jealous rule, noting his deep discomfort with the prospect of government legally differentiating between “real” reporters or not. Fox News reporter James Rosen, Taranto notes, is currently in trouble because he is being accused of being a “co-conspirator” with his source, not because he was attempting to protect that source.

Reason‘s Jacob Sullum also wrote that Graham — who at least Tweeted a follow-up clarification that yes, bloggers deserve free speech protection —  is still wrong about the First Amendment on a basic level. The press:

refers to a technology, not a profession or an industry. “The press,” like “speech,” is a means of communication that all citizens have an equal right to use, regardless of their occupation. Today the press should be understood to mean any medium of mass communication, including the Internet. Freedom of the press in this sense is not a special privilege that belongs only to officially recognized members of the Fourth Estate.

It’s hard to know what should be done about protecting dispensers of news, besides a futile prayer that the government stop haranguing those folks. But stronger protections for whistleblowers and distributors of information, period, would be a better solution than a limited, potentially dangerous law like this.

At least it pays to approach such feel-good legislation with caution. After all, it’s hawks and big government advocates clammering loudest to “fix”  the awful — but supposedly “limited” — Authorization for Use of Military Force; similarly, it’s power-hungry politicians touting a media shield law as the solution to (sometimes their own) spying on and harassment of the press.