Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
Who is a journalist?
Seems a simple question, really. But try to put the answer to paper or computer screen, and more pointedly, try to write that definition into law, and suddenly the effort gets more complicated — as do the First Amendment implications for a free press.
The answer is at issue these days because of proposals in Congress that would permit journalists under certain circumstances to keep confidential the name of a source, even when asked to reveal the identity by a grand jury.
Much of the back-and-forth over the proposals has focused on other than definitional concerns — most notably the worry that criminal and national-security investigations would be seriously hindered if reporters could keep secret the names of those who leak information.
But you can’t have a law shielding journalists without defining who gets shielded.
Most states already provide some sort of journalist “shield law” or court decisions that provide some protection for journalists, but no such provision exists in federal law. According to one report, at least 19 journalists have been subpoenaed since 2001 by federal prosecutors seeking the identities of confidential sources and four have been jailed for refusing to comply.
In 1972, in the U.S. Supreme Court case, Branzburg v. Hayes, which said there was no “news media privilege” on sources in federal courts, Justice Byron White conceded the difficulty of specifying who is a journalist. White wrote that arriving at such a definition would be “a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as the large metropolitan publisher.”
Fast-forward Justice White’s concerns to 2009 and he may well have added “… and the blogger sitting at home using a computer and the World Wide Web.” But that’s not where the law stands in Congress.
The House already has passed its version of a shield law. It defines a journalist as (take a deep breath here if reading aloud): “A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news and information that concerns local, national, or international events or other matters of public interest for dissemination to the public, for a substantial portion of the person’s livelihood, or for substantial financial gain.”
Take note that it requires a person to earn substantial income from journalism – essentially limiting the law’s protections to just those working for news operations. In the process, that eliminates so-called “citizen journalists” and bloggers who post items to the Web without much or any hope of payment, and may well exclude many part-timers, authors and freelance writers. The Senate version faces an amendment limiting its application just to those who are salaried employees or independent contractors for publishers, broadcast and cable companies, news agencies and wire services.
The original Colonial battles over freedom of the press were prompted by the British practice of government licensing of printing presses. Without that license, there was no legal printing — and no journalism without permission.
The nation’s founders chose not to attach in the 45 words of the First Amendment any words that define or limit the term “free press.”
Opinions may differ about the reach, impact and even the necessity of a shield law. But we should keep in mind that the more adjectives or definitions we add to the “press” part of “free press” today, the more we risk inadvertently subtracting from the “free” part tomorrow.