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Don’t let the government define who’s a journalist

Journalists like to use the old maxim “be careful what you wish for, you might get it” to caution politicos and others about the unintended consequences of some action they’re advocating for.

Well, that maxim may soon be applicable to journalists seeking from the Congress protections for the identities of their secret sources.

The Senate Judiciary Committee yesterday voted 13-5 to approve a federal reporters’ shield law that allows journalists to keep secret the identities of confidential sources except in some rare circumstances (such as a reporter finding out who a murderer is when police don’t know). The bill now goes to a vote by the full Senate, and if it passes, on to the House, where chances of it passing are considered slim.

The effort to get Congress to pass a shield law began in earnest in 1972 after the U.S. Supreme Court ruled that there was no de facto shield law contained in the First Amendment.

Almost every state has some sort of reporter shield law, including Arizona, which has one of the best, but the Congress has resisted attempts over the past 40 years to give reporters such protections.

After the fiasco of the George W. Bush administration, in which the administration only liked the leaks they leaked to mislead or bamboozle the press, but hated leaks that revealed the truth and made them look bad, journalists managed to find a few friends in Congress willing to take up the cause of source protection again.

And again it went nowhere. One of the primary opponents of the shield law in 2008 and 2010 was former Arizona Sen. Jon Kyl, who was then the Minority Whip. Now that he’s gone and replaced by the slightly more moderate Jeff Flake, who had voted for a similar bill when he was in the House, some Arizona reporters thought Flake might be a vote on the shield side.


Flake was one of the five who voted against the bill Thursday, along with Sens. John Cornyn (R-Texas), Ted Cruz (R-Texas), Jeff Sessions (R-Ala.) and Mike Lee (R-Utah).

That’s some pretty wingy company for our supposed not-a-right-winger junior senator.

Much of the opposition to the bill, including Flake’s, stems from the bill’s attempt to define who qualifies for source protection. In other words, who is a journalist?

That question has vexed the government, the courts and journalists alike since the founding. The First Amendment says the Congress shall make no law abridging the freedom of the press. But if the government defines who’s a journalist, all those outside that definition are having their free press rights abridged.

In the recent past, journalists have tried to use the broadest definition of journalist, that is, anyone is a journalist who says they’re a journalist. But back then it was expensive to be a journalist due to the cost of printing or broadcast.

But in the Internet age, when publishing information costs pennies rather than thousands of dollars, anyone with a computer and an Internet connection can be a journalist.

Does that mean if the bill passes that anyone in America can find out a government secret, write about it on their blog and the government can be barred from finding out who leaked the secret?

That’s concerning to many members of Congress as well as working journalists. So a compromise achieved this week among supporters of the Senate bill used a more refined definition of journalist that basically says anyone is a journalist who is paid to be one or who can demonstrate a history of acting like one.

And if there are ambiguities about whether someone reporting information from a confidential source qualifies under the definition, the bill leaves it to a judge to figure out.

But these days a lot of people are acting like a journalist and being paid for their work that in the past would never have been considered journalism.

Many think tanks and nonprofit watchdog organizations have begun hiring what they call “investigative reporters” to ferret out information from the government and publish stories on their websites.

The Goldwater Institute, a Phoenix-based conservative think tank, hired a former East Valley Tribune reporter in 2009 to be its “investigative reporter.”

But do the articles that Mark Flatten produces for Goldwater constitute journalism? And if Flatten receives confidential information from a federal source, could he claim the protections of this version of the shield law if it were to pass?

Based on the current wording to the bill, probably so.

But few journalists in Arizona, even his former colleagues and friends from East Valley Tribune, still consider Flatten a journalist. He’s a researcher with exceptional writing skills for a nonprofit partisan political organization (full disclosure, I applied for Flatten’s job at the time it was open).

Democracy requires a free press. A bill – no matter how valuable to news gathering – that opens the door to the government defining who gets to be a journalist is a bill that appears to protect a free press but in fact endangers it.

Between the two bad choices of allowing the government to continue to chill the free press through threatening journalists with incarceration or allowing the government to define who gets to be a journalist, the latter is by far the worst choice.

The former is rare, the latter will be law. Plus, expect states to follow the federal lead and amend their shield laws to include the federal definition of journalist (Arizona’s restricts the sheild to newspaper, TV and radio journalists since it was written before the Internet. Whether the law extends to online journalists – so called bloggers – hasn’t been tested here yet).

If journalists give in to government definition of journalist in order get the federal shield law they’ve long sought, they may soon get government regulation of the press they never thought possible.

Here’s another maxim for journalists to consider, if you want to keep the bear outside the house, don’t open the door.

The Arizona Republic wrote an excellent editorial Wednesday urging Sen. Flake to vote for the bill. I append it below to give you the other side of the argument. I support a federal shield law, but I oppose government definition of journalist. And I don’t know how you can have the first without the second, which is why I offer no solution above other than status quo.

Sen. Jeff Flake should play the part of a cardiologist today.

He and the rest of the Senate Judiciary Committee can clear the plaque from the arteries of self-government by approving the Free Flow of Information Act.

Also known as the media shield law, the act would keep federal prosecutors and private attorneys from snooping in reporters’ notes and phone records. This is important not because journalists need protection, but because it helps ensure that a free people know what their government is doing.

Important stories come to light because insiders provide reporters with documents their bosses would rather keep under wraps because the records reveal abuses or mistakes.

These whistle-blowers often prefer to stay anonymous, for any of a number of legitimate reasons. If they have reason to believe prosecutors can easily uncover their identities, they’ll shut up. Democracy and the whole idea of keeping government accountable lose.

Think that’s far-fetched? Earlier this year, the FBI secretly seized two months of Associated Press phone records from 20 separate lines in an overly broad dragnet. When this became public, the AP found it difficult to get sensitive sources on the phone. Why take the risk?

That’s a high-profile example. Researchers have documents from scores of cases across the country where lazy prosecutors and private attorneys treated journalists as their personal private detectives.

The shield law would put a stop to these abuses and reopen pipelines of vital information.

It is balanced. There are exceptions for cases of national security and public danger. Prosecutors could still compel a reporter to reveal a source if certain criteria were met, all other avenues had been exhausted and a judge approved. News organizations, such as the AP, would have to be notified before any electronic records were seized, giving them a chance to challenge the action in court.

Some critics question why journalists should be singled out for protection, and one of the stickiest debates about the bill involves how to define a journalist. The answer to the first question is easy: Whistle-blowers turn to reporters, not dentists or construction workers. Journalists are the ones targeted by prosecutors and lawyers; they need the protection.

Defining a journalist is trickier, especially in this age of blogs and tweets and easy self-publication. It becomes easier if you consider who is most likely to need a shield: those whom a whistle-blower trusts to responsibly analyze and disseminate information to a wide audience.

The Judiciary Committee is the key to getting a shield law passed. The House has repeatedly passed more expansive versions than the current act. Flake voted for one of those when he represented the East Valley. It should be easy for him to cast a “yes” vote today. We encourage him to do so.

On the House side, only Rep. Trent Franks has signed on as a co-sponsor. The rest of the delegation should join him. As Franks has noted, you don’t have to like reporters to support the Free Flow of Information Act. You only need to believe an informed populace is key to keeping democracy vital and government accountable.

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