A Media Shield Law That Wouldn't Protect Glenn Greenwald Is Not A Media Shield Law; It's A Joke

from the well-of-course dept

Tue, May 20th 2014 2:11pm — Mike Masnick

Back in March, we pointed out that Senator Chuck Schumer had more or less admitted that his attempt at a media shield law (protecting sources) likely wouldn't protect Glenn Greenwald. While Schumer argued that it was still "better than current law," we're still skeptical about Congress' efforts here, given that it seems to involve them determining who is, and who is not, a journalist. That's problematic on all sorts of levels.

Carey Shenkman has decided to dig into the Free Flow of Information Act, and has found that it's basically useless. It doesn't protect journalists doing serious investigative work into the government, and certainly wouldn't protect their sources in cases like Chelsea Manning or Ed Snowden (even though those two were outed via other means, including, in Snowden's case, by choice).

The FFIA does not include those “whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.” This is colloquially called the WikiLeaks clause. But The Intercept is also in trouble owing to what its new editor-in-chief, John Cook, described in mid-April as a “commitment to continue the work of reporting on, publishing, and explicating” Snowden’s releases.

Certainly, Snowden came forward with his identity voluntarily and Manning was betrayed by a confidant, but this is no justification for crafting a law to exclude them. There will be more like them. The market for fearless government accountability publishing is small, and these sources are prime targets for subpoenas. Right now the traditional media still strongly support this bill, under the rationale that expecting perfection out of Washington is unrealistic. Schumer argued at a conference in March that the “perfect shouldn’t be the enemy of the good.” But in this case, the bad is the enemy of the good. Protecting Greenwald, Julian Assange and their sources is not perfection. It is a baseline.

Even worse, the bill has a clause telling judges that it only covers "legitimate newsgathering" which opens up the idea that there's such a thing as "illegitimate" newsgathering. And, of course, that makes the bill worse than useless, because it leaves open a massive loophole. Just declare any kind of newsgathering you don't like as "illegitimate," and there goes any source protections. The end result is basically an attack on the First Amendment's protections for freedom of the press... all packaged up in a bill that is supposed to be about protecting those freedoms.

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Filed Under: chuck schumer, ffia, free flow of information act, free speech, glenn greenwald, media shield

33 Comments

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DannyB (profile), 20 May 2014 @ 2:22pm

The whole point of protecting the press
The whole point of a media shield law would be to protect the press from reporting on things that the government does not to be reported.

Think of a repressive regime where the press can only operate at the government's pleasure. That is what this law is leading toward.

If the press cannot report on things that embarrass the government, then we do not have a free press.
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Jay (profile), 20 May 2014 @ 2:32pm

Really odd...
It really doesn't matter about word technicalities here...

"legitimate newsgathering" - is protected by the 1st Amendment

"illegitimate" newsgathering - is protected by the 1st Amendment

The plan is supposed to be that people have a right to talk about things that affect them in a free society.

That bargain is over with and the people that made that commitment long gone. We're basically at the whip's end when so many people have ignored the lessons of what the 1st Amendment entails.

If you can't protect someone's freedom to talk, their speech, it's not free. It comes at a cost. For those that care to report to the public, they have to know that they aren't being deceived. This law changes that notion. It moves to make the only speech, that of the government and its cronies.

That is propaganda when people can't look at things objectively. Obviously, this can't be sustained. Love or hate the President, but this just seems like a very rough situation only going to get worse.
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Anonymous Coward, 20 May 2014 @ 2:58pm

We already have a media shield law...
It's called the 1st amendment to the Constitution. Of course if the government won't recognize and uphold THAT law why would anyone expect them to recognize and uphold any new one?
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Anonymous Coward, 20 May 2014 @ 3:02pm

for what good these senators are, they may just as well just sit back and let everyone of the rich and famous, regardless of whether that be a person or a company, do whatever the hell they like! these are people who are elected into positions to defend the Constitution and the people, not to be so friggin ridiculous as to let every new law be dissected until all that is left is the title! do something properly for goodness sake or just give the job up and let corporate America take over and rule everything!! after all, it's damn near there already!!
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broken, 20 May 2014 @ 3:05pm

1st A
No one should be above the law, they say. In reality of the Congress, law-makers and law-enforcers are above all others.
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John Fenderson (profile), 20 May 2014 @ 3:07pm

Re: Really odd...
Just to be clear -- the lack of a media shield law doesn't mean that you can't exercise your first amendment rights. Anyone can report anything they like with or without it. The idea of the media shield law is to make it so that people doing the reporting can't be compelled to reveal who their sources are.
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Anonymous Coward, 20 May 2014 @ 3:09pm

Re: We already have a media shield law...
Furthermore, any law that attempts to define a journalist in an exclusive manner is fundamentally flawed and misses the boat Constitutionally. I've said it before (repeatedly) and I will say it again because it bears repeating. It's "freedom of the press" not "freedom of the Press". Freedom of the press is the right to distribute information to the public and is a right guaranteed to EVERYONE by the 1st amendment so unless you want to codify a journalist as anyone who distributes information to the public for their benefit....
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Anonymous Coward, 20 May 2014 @ 3:35pm

This government has sunk to new lows in all directions it seems. Under these guidelines for a law, Thomas Paine would not have qualified in distributing his pamphlets. He would not have been considered a journalist.

We have a serious problem in Washington that has started there and expanded through out government. The ability to ignore the laws of this nation as well as the oath of office and never have to worry about the repercussions of their actions. That is not Democracy. It is not what the citizens of this nation believe in.

Our government officials seem to get ever more bold with how they can trash the Constitution and get away with it. The question is how long will this last? When comes the last straw on the proverbial camel's back?
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Lurker Keith, 20 May 2014 @ 3:41pm

1st Amendment to the Constitution of the USA
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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Jake, 20 May 2014 @ 4:38pm

"... given that it seems to involve them determining who is, and who is not, a journalist. That's problematic on all sorts of levels."

Look, if you want to have specific legal rights and responsibilities attached to the label of journalist then you must have a concrete legal definition of the act of journalism. There's no point in having a shield law when who is and isn't protected by it comes down to which side has the better lawyers; that'd be worse than no shield law at all.
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tomczerniawski, 20 May 2014 @ 4:41pm

I thought there was already a media shield law...
... otherwise known as the first amendment?
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Anonymous Coward, 20 May 2014 @ 5:02pm

Re:
Remember folks, this goes back to at least the 1980s.
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Anonymous Coward, 20 May 2014 @ 5:06pm

Probably another one of those laws that sound like they would do the right thing, but actually make things worse.
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vegetaman (profile), 20 May 2014 @ 5:54pm

*given that it seems to involve them determining who is, and who is not, a journalist*

I just wanted to comment on this part here... Freedom of the Press doesn't mean, to my understanding, that the government gets to decide who "The Press" is. In fact, I would read into it (and I'm sure it's been discussed here before), that The Press is the printing press. So today, anyone who blogs or writes a letter to the editor or anything is a 'journalist' in the legally important sense of the word. Of course, legacy journalist industries and societies may have their own ulterior motives for not always supporting this viewpoint.
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Lurker Keith, 20 May 2014 @ 6:29pm

Re:
So, if I find a cop violating the Constitution, for example, record him w/ my cell phone & upload that video to the net for the world to see, I don't qualify for 1st Amendment Free Press protections?

Free Press means w/o Government interference. The Government deciding who counts for protection sounds like interference to me.

Since anyone can come across something newsworthy first & post it for the public to see online, ANYONE can be a Journalists, so EVERYONE is covered by all portions of the First Amendment at all times. I'm pretty sure that's what the Founders intended.
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Lurker Keith, 20 May 2014 @ 6:30pm

Re: Re:
Journalist* (not sure how the S got there)
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Whatever, 20 May 2014 @ 9:56pm

sheilding law breakers?
I actually think this bill isn't as bad as all that. I think that "journalism by data dump" ala wikileaks isn't journalism at all. It's something, but it's not journalism.

The point is that journalists don't get to ignore other laws and wrap themselves in the 1st amendment no matter what. You can't back into it by using the old ends justifies the means excuse. That won't work out.

Glenn Greenwald is one of those who does both types of things, he is both a journalist but also has decided to be a data dumper. His protections as a journalists should not extend to his aiding and abetting the crimes of others to obtain classified information illegally. Otherwise, we are left with a situation where a journalist could commit any crime in the quest to obtain information without fear of legal repercussions. Break into your office to get documents? No problem, I'm a journalist. Bug your phone lines, hack your laptop, get your text messages? No problem, I'm a journalist.

You only have to look at what happened in the UK with Murdoch's papers to see where they crossed the line. We all want to give Greenwald a pass because the results are so good, but really, he is just helping someone who broke the law. He can't have it both ways.
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Jake, 20 May 2014 @ 10:50pm

Re: Re:
It's not directly related to the 1st Amendment. Shield laws are about whether a journalist can be forced to disclose the identity of someone who gave them information they use in the course of their job.
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David, 20 May 2014 @ 10:56pm

Re: I thought there was already a media shield law...
Oh, that one's too broad to heed. Obviously the founders were unaware of the danger of terrorism, being terrorists themselves according to modern standards.

The constitution is very nice, but for actual lawyering we need something more discriminate, or we would be applying the same rules to good and bad people.
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PaulT (profile), 21 May 2014 @ 12:31am

Re: sheilding law breakers?
"No problem, I'm a journalist. Bug your phone lines, hack your laptop, get your text messages? No problem, I'm a journalist."

Would it kill you to understand the arguments before spewing irrelevant nonsense?

Hint: all of that is personal activity and has nothing to do with revealing sources. Did Greenwald personally hack anyone? No? Then get back to the actual argument.
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Anonymous Coward, 21 May 2014 @ 1:37am

Re: sheilding law breakers?
You realise no one believes you, troll boy?
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David, 21 May 2014 @ 4:56am

Re: sheilding law breakers?
His protections as a journalists should not extend to his aiding and abetting the crimes of others to obtain classified information illegally. Otherwise, we are left with a situation where a journalist could commit any crime in the quest to obtain information without fear of legal repercussions.

We are currently left with a situation where a government official can commit any crime in the quest to information without fear of legal repercussions. Lots of them do so, and their number exceeds the number of journalists doing so much more than a thousandfold, and the public is left in the dark about it and thus is not able to form an opinion and exert its democratic influence.

Not hacking the first amendment into pieces is clearly the lesser evil. We need all the sources of information about the most transparently corrupt administration in history that we can get.
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Anonymous Coward, 21 May 2014 @ 5:01am

Attitude
The Free Flow of Information Act. The USA Freedom Act. Various and sundry Acts regarding firearms and self-incrimination...

The fact that Congress feels that it is its job to write laws protecting the press, privacy, etc. belies a very interesting institutional (and larger cultural) attitude. Namely, that the Constitution/BoR is not a baseline or guarantee of liberty but is instead an upper bound.
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Lurker Keith, 21 May 2014 @ 5:44am

Re: Re: Re:
My point was it's still an abridgment of Free Press, which is a violation of the First Amendment, which makes this a First Amendment issue.

Let's adjust my scenario. Instead of me recording the cop, let's say a friend of mine did, & a neighbor (both at angles that couldn't be used to identify them). Both were afraid to post the videos, but had me do it, because I understand we're covered by the First Amendment. This Law could require me to tell the cops who don't like accountability where my videos came from, aka reveal sources, during discovery while an appeal, which I couldn't afford, on Constitutional grounds of our right to make & disseminate the recordings proceeds.

In the Age of the Internet, anyone can be part of the Press, so any Shield Law should account for that, rather than define "Journalist" narrowly.

Or, I don't know, perhaps the Government could just follow the First Amendment like they're supposed to, instead of trying to limit who it covers & when. Because from what I understand, that is what this Bill is for, to define who should be covered, not to protect anyone. We already have the First Amendment to protect Journalists.
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Anonymous Coward, 21 May 2014 @ 7:53am

Re: sheilding law breakers?
There's a difference though. Was Murdoch's crew attempting to expose crimes being committed by the government for the benefit of the public?
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Anonymous Coward, 21 May 2014 @ 7:57am

Re: Re: Re:
Oddly enough. I think Michael Hayden said it best...

"Everyone's a journalist."
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Anonymous Coward, 21 May 2014 @ 8:18am

Re: Re: I thought there was already a media shield law...
Better idea. How about a law that protects against weasel wording by lawyers and government officials to twist the law into meaning something that it clearly doesn't? "Congress shall make no law... abridging..." is pretty clear language.
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Anonymous Coward, 21 May 2014 @ 8:26am

Re: Re: Re: I thought there was already a media shield law...
Or a law that mandates the demonstration of a remedial understanding of the English language on the part of law makers in order for them to continue to hold office.
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G Thompson (profile), 22 May 2014 @ 1:57am

Re: Re: Re: Re:
ah but the USG has now clarified that statement..

Everyone's a journalist, unless they're not"
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G Thompson (profile), 22 May 2014 @ 2:04am

Re: sheilding law breakers?
I'm sorry I am trying to see the similarities between investigating, compiling, then reporting on events that someone else has given you and OPENLY doing it and intercepting and/or accessing information by unauthorised and ILLEGAL means PERSONALLY!

Oh wait.. that's because there is not any similarities and they are totally dissimilar in any legal, ethical or any other way.
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Pragmatic, 23 May 2014 @ 6:37am

Re: 1st Amendment to the Constitution of the USA
But they've done it because . And terrorism. TT
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Pragmatic, 23 May 2014 @ 6:39am

Re: Re: sheilding law breakers?
LOL!
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GEMont (profile), 28 May 2014 @ 4:50pm

Donchaknow...

A Media Shield Law is a law that shields high ranking political assholes from the Media and makes it a crime for media to hide their sources from those same political assholes.

Since you already have old laws that lay down rules for the protection of sources by media, it behooves the assholes running the US to make new laws that counteract that sort of shit.

You cannot have a free press in a fascist state.
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