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Rep. Grayson Attempts To Build A Journalist Shield Law Out Of A One-Line Amendment, But Will It Do Any Good?

from the there-are-journalists-the-government-likes,-and-then-there's-everyone-else dept

Wed, Jun 10th 2015 3:45pm — Tim Cushing

It looks like the government might be forced to hold another uncomfortable discussion about who is/isn't a journalist. Among the many amendments to the DOJ's appropriation bill was one from Rep. Alan Grayson, which forbids the use of DOJ funding to force journalists to turn over sources.

The description of the amendment is only one sentence long, but it's provoking a much larger discussion.

None of the funds made available by this Act may be used to compel a person to testify about information or sources that the person states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential.

"...as a journalist or reporter…" -- What does that mean?

In the non-specifics of a short amendment, it could mean anything. In a practical sense, its definition is likely far narrower. Legislators have periodically mounted attempts at a "shield" law for journalists. Unfortunately, their efforts have either been beaten back by administrations that love prosecuting leakers or that were sabotaged by their own far-too-limited ideas of who might qualify for the elusive "journalist" designation.

This -- despite its open-endedness -- will probably end up being no better than previous efforts. On one hand, it could be argued that the term is almost all-inclusive. Here's Joel Kurtzberg -- who defended James Risen in his fight against the DOJ -- on what he sees is the problem with Grayson's amendment.

“If this became law, it would provide significantly needed protection to journalists who need to be able to keep their promises to confidential sources in order to do their jobs,” he says. “The difficulty with it, however, is that it appears to provide protection for anyone who claims in motion papers to have obtained confidential information as a journalist."

Kurtzberg says if the amendment passes the Senate and becomes law anyone who claims to be a journalist could be off the hook from testifying.

This seems like a rather odd argument to be coming from someone's whose client would have definitely benefitted from some sort of journalistic shield law. It's almost as though he's of the same mindset as some of our representatives: "real" journalists write for well-known papers and draw salaries. No one outside of this narrow definition should be shielded from the government's vengeance, no matter how much journalism they actually perform. (It's an act, not a position.)

A legal rep (Barry Pollack) for an entity frequently considered to be "NOT JOURNALISM" by legislators (Wikileaks) sees this wording as implying the opposite.

“I wouldn't say it offers no real-world protection,” he says. “It offers limited and imperfect protection. It would constrain what the Department of Justice could do. Anyone has a better chance if the opponent has one arm tied behind its back. But it is the referee, not the opponent, who makes the decision.”

As he sees it, the courts could still compel testimony because there is no federal law offering explicit protections for journalists. The DOJ may not be able to spend money prosecuting journalists, but the courts would not be compelled to recognize a protection that officially doesn't exist.

“Unless the law changes, judges may continue to rule against journalists, even without the Department of Justice openly advocating for that result,” Pollack says.

And if it's not the judges, it may be the administration itself, which has never been kind to whistleblowers or journalists. The usual mouthpiece for prosecutions is the Department of Justice, so this amendment -- if it sticks -- will make for some interesting courtroom maneuvers in the future.

Grayson himself doesn't see any real issues with the amendment as worded. According to him, the fact that lying to the government is a crime will be a sufficient deterrent to potential abuse.

Grayson points to former House Speaker Dennis Hastert’s recent indictment for allegedly lying to the FBI when asked if non-journalists could misuse the provision.

“If you go to court and lie about anything, or lie to federal agents ... then that itself is a crime and will lead to you being in prison,” he says.

The potential for this sort of abuse isn't what worries journalists about shield laws. It's the abuse coming from the top down. Grayson's amendment means well, but his feeling that the government -- via the courts -- will interpret this open-ended "reporter or journalist" designation "reasonably and favorably" puts a bit too much faith in a system that has shown a preference for doing exactly the opposite.

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Filed Under: alan grayson, journalism, protection, shield law

12 Comments

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That One Guy (profile), 10 Jun 2015 @ 3:02pm

'Maybe. Possibly. What's your rank/net worth again?'
“If you go to court and lie about anything, or lie to federal agents ... then that itself is a crime and will lead to you being in prison,” he says.

That really deserves at the very least an editor's choice for 'Funny comment of the week' there. Lie in court and you go to prison? Maybe if you're poor, but anyone with a high enough position(government or otherwise), or a large enough bank account can lie all day and the spineless courts won't do a thing.
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Anonymous Coward, 10 Jun 2015 @ 3:57pm

According to him, the fact that lying to the government is a crime will be a sufficient deterrent to potential abuse.

It did not deter James Clapper, or any other senior member of the government.
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Anonymous Coward, 10 Jun 2015 @ 4:09pm

defining who is a reporter doesn't pass the sniff test
If the govt can define who is and isnt a reporter it is simply not possible to have freedom of the press
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Lexus Nexus, 10 Jun 2015 @ 4:45pm

We know who the fraud reporters are.
Just look at Clark Kent, did you ever see even one article he wrote? fraud not a journalist at all.
I mean really what did he ever do for America except apprehend the wicked, save the innocent and bring truth and justice for all, clearly the fraudulent type of journalist that should be in jail..
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Anonymous Coward, 10 Jun 2015 @ 4:46pm

"None of the funds made available by this Act may be used to compel a person to testify about information or sources that the person states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential."

None of the funds made available by this Act may be used to compel a person to testify about information or sources that the person states in a motion to quash the subpoena that he has obtained as a Citizen of Earth and that he regards as confidential.
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Lexus Nexus, 10 Jun 2015 @ 4:57pm

On a less hyperbolish note.
It should not be hard to figure out who is and is not a reporter, if you have a history of REPORTING on things shazzam! even if it's your own personal blog, even if you've only ever reported the proceedings of your podunk city council in I've Never Heard of It USA, if you have been reporting your a reporter, one can argue if you're a good journalist or not but you still are one if your doing the job, even if your not being paid, even if people don't like what you say, seriously we consider FOX News Journalists seems to me the definition is already so broad, when people that are explicitly admitting that they lie on air are included that "If you write about it" your a reporter seems a good enough definition, I don't see why it's so hard for figure out..
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Mike Mixer (profile), 10 Jun 2015 @ 5:17pm

The way this is being handled is a strategy. Trying to get all the pieces together in one fell swoop is quite unlikely in the current congress. Starting with doing something that binds the DOJ will go over well with enough republicans, because Fast and Furious and Benghazi, that it's an easy lift. It's a good strategy, putting several different amendments into several different laws that add up to getting the desired effect. It has the added bonus of being damn difficult to get rid of, even with a hostile administration.
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Sarcastic Fringehead, 10 Jun 2015 @ 5:58pm

Journalist Jour"nal*ist, n.
1. One who keeps a journal or diary; a diarist. [Obs.]
--Mickle. [1913 Webster]

It used to be a manual task. Now it's automated. If you carry a cellphone, you could be a journalist. If you use the Internet, etc., even if you didn't sign up for the job.
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Sarcastic Fringehead, 10 Jun 2015 @ 6:56pm

robot journalism
Some judge will claim that a journalist is someone who writes articles that are published in a newspaper.
http://www.npr.org/2011/04/17/135471975/robot-journalist-out-writes-human-sports-reporter
S o that judge will have to admit that a robot is a journalist but claim a human is not. Would he then grant a privacy right to a robot but deny it to a fleshy?
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Jake, 11 Jun 2015 @ 12:57am

Re: defining who is a reporter doesn't pass the sniff test
Well, who else do you have in mind for the job, then? Because the legislature can hardly give preferential legal treatment to journalists without agreeing on a clear and specific definition of the act of journalism.

And not to put too fine a point on it, but if you don't think you can trust your government to do that without finding an excuse to suppress dissenting opinions then you might as well give up on exercising your 1st Amendment rights entirely and switch to the 2nd Amendment.
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Anonymous Coward, 11 Jun 2015 @ 1:45am

Re: defining who is a reporter doesn't pass the sniff test
Freedom of the press is a the right of every person to seek publication of what they create. This freedom include producing and distribution through the efforts of an individual or small group using their own equipment, like a laser printer, and then handing out copies on the street. Allowing the government to treat it as applying to news organization organizations and publishers of other people's works is how to enable general censorship.
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Anonymous Coward, 11 Jun 2015 @ 5:35am

Re: Re: defining who is a reporter doesn't pass the sniff test
Thank you. Nice to see someone else making this point as well.
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