Protecting journalism v journalists

The Knight Foundation’s Eric Newton draws attention to the knottier issues around a proposed federal shield law for journalists and urges critics to be included in the debate about whether it is better to have a constitutional or merely a legislative protection.

I believe a shield law that protects job descriptions is fatally flawed. At a Knight event in Washington last week, investigative journalist Scott Armstrong argued strongly that the government will slice out exceptions to protecting national-security reporters. “More cases are emerging because it’s never been easier to leak or investigate leaks,” Newton writes. “Reacting to a new generation of digital whistleblowers, like Chelsea Manning, Armstrong said this administration began to treat all leaks ‘as if they were espionage cases.’ There have been seven leak cases under the Obama administration, and only four in all of history before; Savage called challenging informants the ‘new norm.'”

I worry that by requiring the journalist to work for a news organization or freelance for them or be a journalism student, many will be left out. But arguing to add more categories of people to the definition isn’t the answer.

The answer is to protect not the journalist but the act of journalism: that is, revealing information that is in the public interest.

Oh, yes, I know that would then include Wikileaks, Chelsea Manning, Edward Snowden, Thomas Drake, and Daniel Ellsberg — none of whom would qualify under the proposed law but every one of whom has revealed information of vital public interest, fueling the debate that democracy should welcome.

Until we are ready to stand behind that broad principle of information in the public interest as our definition of journalism, then I come to see that I stand with the shield-law critics Newton cites. For we do have a shield. It is the First Amendment. Asking Congress to modify and limit it is short-sighted and too much an act of self-interest by journalistic organizations eager to be protected themselves.

Let’s remember that ultimately, it’s not the journalists we are seeking to protect but the sources of that information. Now that those sources can share directly with the public, with or without journalists as mediators, then we must protect them as journalistic actors.

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  • davemacdo

    Not to turn this into something it isn’t, but how do you decide whether information is “in the public interest”? It seems as though this could be frustratingly subjective in a courtroom. It reminds me vaguely of the discussions of whether Wikileaks counts as a journalistic enterprise. I’m not sure it matters if we use the hallowed j-word to describe it. I’m also not much sure it matters whether information can be assessed by its level of public interest. Instead, I’d prefer to stick with your own axiom of governmental transparency: “open by default; secret by necessity.” It’s the difference between treating the symptom and curing the disease.

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  • Thurston

    @davemacdo:disqus: Good Q. The other I have is what will constitute “acts of journalism.” If I simply disseminate state secrets am I acting like a journalist? Most major newspapers now would balk at simply posting all of the Snowden docs, preferring to sift through and look for improper exposure of people or methods. If I, acting in the public interest, just post all the docs am I engaging in more, less, or about the same level of journalistic activity? Some of what we think of as “acts of journalism” have roots in the world of professional, trained journalists. At the same time, the ethics rules that pros follow are easily found online and generally understandable by an moderately well-educated person. Therefore, would we look to professional standards to determine if the act itself was “journalistic”?

    • anamax

      > At the same time, the ethics rules that pros follow are easily found online and generally understandable by an moderately well-educated person.

      Was CNN acting ethically when it self-censored its pre-invasion reporting?

      I ask because most “ethics codes” are actually carefully crafted arguments justifying bad behavior. The exceptions are mostly about restricting competition.

  • Kurt Wimmer

    “For we do have a shield. It is the First Amendment.” Jeff, do your research. Many federal courts have held that the First Amendment does NOT provide a shield, which is why we need Congress to act. Jim Risen would not be in danger of being jailed if the First Amendment were a shield — it simply isn’t. And please read the law itself, not just the bloggers complaining about it — it does, in fact, define journalism as a function. Emily Bazelon has read the law and gets it right:

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