Shield laws were a major subject of conversation in 2013. They exist in 40 states to protect journalists from court orders to reveal confidential sources. The idea is that in order for the press to fulfill its watchdog role, dig up the truth, and expose corruption, it must be seen as autonomous. If journalists are but one subpoena away from spilling the beans, then the press is little more than an arm of the government… and then what source with something to lose is ever going to speak out?
As we learned in 2013, shield laws get confusing when a journalist’s work crosses state lines, and that even when a subpoena is eventually overturned, the professional damage may already be done. (Lauren Kirchner, Columbia Journalism Review)
And what of perhaps the biggest story of the year – the expansive surveillance of U.S. citizens by the National Security Agency? What if Edward Snowden did not choose to reveal his identity? What if the Washington Post’s Barton Gellman had to protect the source of leaks that threatened national security? Nevermind Snowden’s primary confidant, Glenn Greenwald, the American citizen living in Brazil writing for a British newspaper. British authorities, by the way, exercised prior restraint, destroyed Guardian computers, and detained Greenwald’s partner, David Miranda, under anti-terrorism laws. So while we’re not unjustified in our concern for U.S. policy, we can remain thankful for the First Amendment’s prominence in our jurisprudence. (Alan Rusbridger, The Guardian)
RELATED: The NSA surveillance leaks in-brief
Never in U.S. history has a journalist been tried for passing along information that someone else stole. The press actually doesn’t have many rights beyond those of ordinary citizens – but rebuffing subpoenas and publishing stolen information are two pretty nice cards to have in a muckraker’s back pocket. You try keeping that nice stereo your sketchy friend sold you for ten bucks…
But in 2013, the Justice Department pushed back against those rights in an attempt to prevent the leaking of unseemly information to the press. The DOJ’s actions, as luck would have it, were leaked.
We learned that the Justice Department had been secretly spying on the Associated Press – obtaining records from reporters’ business and personal phones without any apparent direction. The AP’s official response would have been angrier if it weren’t so bewildered (Gary Pruitt, The Associated Press). The First Amendment Center concluded that “For an administration that has cloaked itself in a self-proclaimed mission to become the most transparent, open government to-date, such a wide, secret dragnet aimed at a huge number of journalists seems contradictory – even predatory.” (Gene Policinski, First Amendment Center)
But we can be more specific. Because the DOJ didn’t just haphazardly track a handful of AP reporters, they outright targeted one specific reporter and accused him of aiding and abetting the enemy for reporting the news. That reporter was Fox News’ James Rosen, who, in 2009, relied on a confidential government source to report that North Korea was going to begin testing nuclear missiles. The DOJ alleges that the source was Stephen Jin-Woo Kim, and is trying him under the World War I-era Espionage Act – something the Obama Administration has done more than all previous administrations combined. But the possibility that Rosen could be a co-conspirator for publishing information from a source was new ground – a step toward “criminalizing journalism.” (Michael Calderone & Ryan J. Reilly, The Huffington Post)
Though no journalists were officially tried for a crime, the chilling effects of repeated threats to do so coupled with secret surveillance were quite real.
All of this has re-fired debate about a federal shield law . Uniform protection from subpoena power? Seems nice, even though it doesn’t directly address the whole “criminalizing journalism” bit (in fact, a good bit of what we’re really talking about here falls outside the scope of state shield laws). Still, the journalism profession’s reaction to a uniform federal shield law has been mixed (Pro: David Carr, The New York Times; Ken Paulson, First Amendment Center | Con: Matthew Ingram, GigaOM; Josh Sterns, Free Press).
The greatest concern is a statutory definition of the term “journalist.” When I said “the journalism profession” just two sentences ago, it was something of a misnomer. The press, by the very nature of the job, tends to rebel against institutionalization. “Who is a journalist?” becomes a tougher question to answer with each passing year and with each new technology that enables anyone to be a mass communicator. Is it the medium? The message? The job description? Some combination? Is my blogging here journalism? What about when I reported news on the broadcast airwaves, but did so primarily as a music disc jockey or a sports announcer? And how in the world do you classify Julian Assange and Wikileaks? Is an anonymous digital dropbox journalism? Does the presentation of leaked information equate to editorial discretion? Does the fact that Assange actively helps his sources hide from the governments that seek to arrest them make him a co-conspirator?
Traditionally, journalists have enjoyed the preferred position of the First Amendment adopted by most courts, and a fairly liberal conceptualization of what it means to be deserving of its full protections. Detractors of a federal shield law fear that Congress carving out specific attributes and circumstances in which protection can apply could actually make it easier for non-traditional reporters to lose protections.
So while much of the debate turns to whether Snowden is a hero worthy of clemency or a traitor worthy of a prison sentence, we’ll see how 2014 unfolds for the journalists who rely on the Snowdens of the world to reveal to the people what their government keeps hidden.