Senators ponder if bloggers deserve First Amendment protection

As the U.S. Senate continues to debate a national law to protect journalists from protecting their sources, two Senators believe unpaid bloggers and websites like WikiLeaks shouldn’t get extended First Amendment protections.

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First Amendment in the Bill Of Rights

The Senate Free Flow of Information Act of 2013 would establish a national “shield law” that would give journalists protection from testifying in situations when investigators want the sources of confidential information used in media reports.

However, in today’s world, the definition of the word “journalist” means different things to different people, and two powerful Senators, Dianne Feinstein and Richard Durbin, say journalists only should enjoy extended First Amendment protection if they work for traditional media outlets on a paid basis.

The Free Flow of Information Act was introduced earlier this year by Senator Charles Schumer, who had introduced a similar bill in 2009 with the late Senator Arlen Specter. Back then, Feinstein and Durbin wanted strict definitions of the word “journalists” after the WikiLeaks story broke.

Their current amendment to the bill poses the same questions.

“This bill is described as a reporter shield law — I believe it should be applied to real reporters,” Feinstein said last week. “The current version of the bill would grant a special privilege to people who aren’t really reporters at all, who have no professional qualifications.”

The Feinstein-Durbin proposed amendment would narrowly define journalists as “a salaried agent” of a media company.

Feinstein also reportedly said that the bill shouldn’t apply to WikiLeaks or “a 17-year-old who drops out of high school, buys a website for $5 and starts a blog.”

Schumer’s bill has a much-broader definition and he believes the language is specific enough to include bloggers and unpaid contributors, and exclude WikiLeaks.

“The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that,” Schumer said. “But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.”

Link: Read Schumer’s Bill

Back in the 2009 debate over who is a journalist, Senator Patrick Leahy pointed to an old-school blogger who may not have enjoyed shield-law protections back in the 1700s under the Feinstein-Durbin amendment.

Leahy said Benjamin Franklin as an “anonymous blogger” who had a critical role in explaining “the reasons why this country should exist.”  (Other Senators used Thomas Paine as an example.)

The debate will continue in September when the Senate returns from its recess and the bill moves on to a wider discussion.

But as Congress ponders a national shield law, recent events in the courts could also have an effect on bloggers and “traditional” journalists who might need to protect their sources from federal investigators.

A July 2013 4th U.S. Circuit Court of Appeals ruling reaffirmed that the First Amendment doesn’t allow reporters to protect confidential sources in federal criminal cases.

In United States v. Sterling, a divided court said New York Times reporter James Risen must testify in the trial of former CIA officer Jeffrey Sterling, who is charged with leaking classified information to Risen.

“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify,” said Judge William B. Traxler Jr.

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred …. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it,” said Traxler.

The court evaluated the Sterling case in the light of Branzburg v. Hayes, a 1972 Supreme Court decision that said the First Amendment doesn’t protect reporters from testifying before a grand jury if they have witnessed a crime.

Justice Byron White wrote the majority opinion in the 5-4 decision, but it was a concurring opinion from Justice Lewis Powell that led to a greater movement toward state shield laws. Powell believed courts should balance the government’s need for information with a journalist’s right to protect sources.

Currently, only Wyoming doesn’t have a state shield law or a court-recognized privilege for reporters.

In 1972, Justice White was also asking the same questions that Congress is debating today about the process of defining the word “journalist.”

“The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order.  Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, 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 of the large metropolitan publisher who utilizes the latest photocomposition methods,” White said in his opinion.

White then referred to an older Supreme Court decision, Lovell v. City of Griffin, from 1938, when Chief Justice Charles Evans Hughes said that, “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.”

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