Congress Threatening to 'Define' Free Speech And Who Has A Right To It...And It May Not Be You

Congress and the Justice Dept's Dangerous Attempts to Define “Journalist” Threaten to Exclude Bloggers

July 23, 2013 | By Morgan Weiland
Lawmakers in Washington are again weighing in on who should and should not qualify as a journalist—and the outcome looks pretty grim for bloggers, freelancers, and other non-salaried journalists.

On July 12, the Justice Department released its new guidelines on investigations involving the news media in the wake of the fallout from the leak scandals involving the monitoring of AP and Fox News reporters. While the guidelines certainly provide much-needed protections for establishment journalists, as independent journalist Marcy Wheeler explained, the DOJ’s interpretation of who is a “member[] of the news media” is dramatically narrower than the definition provided in the Privacy Protection Act and effectively excludes bloggers and freelancers from protection. This limiting definition is causing alarm among bloggers like Glenn Reynolds on the right as well.

While the DOJ’s effort to limit the scope of who can be recognized as a journalist is problematic, it doesn’t have teeth. Guidelines are, well, guidelines. But the report is part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it. Importantly, Congress introduced federal shield bills in May—both ironically named the “Free Flow of Information Act of 2013”—that arguably would exclude bloggers, freelancers, and other non-salaried journalists from protection because they are not included within the bills’ narrow definition of who qualifies as a journalist.

If these bills—support for which the White House reaffirmed in its DOJ report—pass without change, Congress effectively will create two tiers of journalists: the institutional press licensed by the government, and everyone else. That’s a pretty flimsy shield if what we are really trying to protect is the free flow of information.

Not-So-Free Flow of Information Acts
Both the House (H.R. 1962) and Senate (S. 987) bills use the euphemistic phrase “covered person” as a stand-in for “journalist.” In defining “covered person,” the bills effectively describe an individual working for a mainstream news organization and threaten to exclude bloggers.

Specifically, the House bill requires that such an individual engage in “journalism” for “financial gain or livelihood.” The Senate bill defines a “covered person” as one who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes” on “local, national, or international events or other matters of public interest.” (emphasis added) Further, both bills explain that “covered person” includes that person’s “supervisor, employer, parent [company], subsidiary, or affiliate.”
The requirement of doing journalism for money and on a consistent basis, coupled with the suggestion that such activities happen within a larger journalistic organization, paints a picture of a New York Times correspondent—and arguably excludes bloggers, freelancers, and other non-salaried individuals who practice the craft of journalism and need the most protection.

Déjà Vu: Sen. Schumer’s 2009 Shield Bill Amendment Excluding Bloggers, Freelancers
Congress’ hostility to bloggers and independent journalists is nothing new. Indeed, EFF documented and fought against Sen. Charles Schumer’s (D-N.Y.) 2009 amendment to a similar federal shield bill that explicitly exempted bloggers and others from protections.

Clearly, Congress wasn’t listening. Though the prior legislation died after WikiLeaks—in conjunction with the New York Times and others—started publishing a trove of State Department cables in late 2010, Congress has revived both the good and bad. This time around, anti-blogger language is baked into the bills’ text. Sen. Schumer has re-introduced the Senate version with the restrictive definition of journalist, along with a large national security exception that would render the bill meaningless in the cases where a reporter’s privilege is needed the most.

Win-Win Legislative Fix: Define Journalism, Not Journalist -READ MORE