By Anne Lowe
FREE PRESS -- A bill headed for a vote in the U.S. Senate could extend protection to journalists who refuse to divulge their materials or sources, but contentions have arisen as to who should share that protection. California's Sen. Dianne Feinstein, unsuccessful at excluding bloggers from the bill, now wants an amendment excluding Wikileaks.
California’s Constitution already offers protection from prosecution or incarceration for journalists who refuse to name their sources or provide their materials to state courts or government agencies, but currently no such protection exists on the federal level, for example to protect journalists from the investigations of federal grand juries.
The Free Flow of Information Act, if passed by the Senate and signed into law by President Obama, would extend what is commonly known as the “Shield Law” to federal investigations in all 50 states and would apply to a broad range of journalists, including those who report solely on the Internet.
That breadth, notes a Fresno Bee editorial, could now endanger the bill.
The First Amendment Center noted on Aug. 25 that Sen. Feinstein is now working on another amendment—this time to exclude organizations such as WikiLeaks, whose “sole or primary purpose is to publish unauthorized disclosures of documents”—and representatives of the newspaper industry are aiding in “crafting the new language” of the amendment. It comments:
The broader definition is one element that creates significant disruption within the government. Sen. Dianne Feinstein introduced an amendment -- which was eventually rejected -- that would more tightly define a journalist, which would have excluded student journalists, amateur bloggers and freelance journalists working without a contract.While more traditional, large-scale media continue to serve their respective communities, the reach of micro-media outlets continues to develop. Thus, we believe that federal protections for journalists should include all those engaged in the effort to publish information vital to their audiences, rather than providing exclusive privileges to only a select few.
A law protecting journalists might conjure big-city images of the Watergate coverage published in the Washington Post by Bob Woodward and Carl Bernstein. Or of the San Francisco Chronicle reporters subpoenaed for their sources regarding the BALCO steroid investigation.But it also applies to journalists like Tim Crews, editor and publisher of the Sacramento Valley Mirror, a 2,000-circulation weekly newspaper in northern California. In 2000 Crews was jailed for five days after refusing to name his source in a story about a former California Highway Patrol officer charged with stealing a gun.
Over the years, Crews has received threats, had advertising pulled from the paper and even saw his dog die in 2004 -- allegedly from poisoned meat left by a sex offender named in the paper -- all for consistently and courageously asking questions and pulling back the veil of secrecy from local government.
The full text of the bill can be found at the Library of Congress website.
It doesn’t seem all that long ago that representatives of the newspaper industry would have recoiled from working with Congress to deny legal protection to anyone who leaked confidential or classified documents. Today, however, they seem happy to be doing so.
For example, Kurt Wimmer, an attorney representing the Newspaper Association of America, told Yahoo’s "The Upshot" that his client supported adding language to keep organizations like WikiLeaks from being protected. “There’s a distinction (between) how WikiLeaks works and how news media organizations work,” he said, describing WikiLeaks as more of “a drop box for leaked documents.”
Similarly, Paul Boyle, senior vice president for public policy at the NAA, told the Reporters Committee for Freedom of the Press that “Senate sponsors want to shore this up by stating it is not their intention to cover WikiLeaks-type websites that simply publish raw data without editorial oversight.”
More generally, Lucy Dalglish, executive director of the Reporters Committee, criticized WikiLeaks as “not journalism.”
“It’s data dissemination, and that worries me,” she told Time magazine. “Journalists will go through a period of consultation before publishing sensitive material. WikiLeaks says it does the same thing. But traditional publishers can be held accountable. Aside from Julian Assange, no one knows who these people are.”
Little doubt exists that it’s been politically expedient for those seeking passage of the shield law to distance themselves from WikiLeaks and Assange, the site’s controversial founder. And that was before allegations of rape and molestation were made and then dropped against Assange in Sweden.
In response to Schumer’s announcement, for example, Kevin Smith, president of the Society of Professional Journalists, told "The Upshot" that he hadn’t seen Schumer’s proposed amendment but acknowledged he was concerned that WikiLeaks’ posting of the classified documents might derail the shield law.
“This is the closest we’ve come to getting something moved,” Smith said, “and it’s unfortunate that this WikiLeaks situation’s come up.”It would be more unfortunate, however, if journalism organizations, in their zeal to see a federal shield law finally pass, encouraged Congress to restrict the act’s protection to those who practiced journalism only in a particular way.