by Devon DB
April 08, 2014
is a 22 year old independent writer and researcher. He can be
Currently being debated by the Senate, but rarely discussed
on mainstream television, is the Shield Law.
While on the surface it may seem to be rather innocuous,
some of the language in it and its implications are quite
problematic for journalists.
Shield Law is a law which,
protection for the 'reporters' privilege' - legal rules which protect
journalists against the government requiring them to reveal confidential
sources or other information."
Generally, this is a positive occurrence as
journalists are much more able to conduct their work and bring information
to public light if they do not need to worry about having to reveal their
While Shield Laws have occurred in the past, they have only been on
the state level. This currently proposed Shield Law is the first one to
reach the federal level and the main goal is to protect journalists from
having to reveal confidential sources in federal cases.
However, there are certain instances in which
journalists will have to reveal sources, such as,
The party seeking disclosure has
exhausted all reasonable alternative sources of the information
The requested information is essential
to resolving the matter
Disclosure of the requested information
would not be contrary to the public interest
In criminal cases, if the requesting
party is the federal government, the government must show that there
are reasonable grounds to believe that a crime has occurred.
While overall it may seem like a good bill,
there are a number of problems with this Shield Law, officially known as the
Free Flow of Information Act of 2013.
For starters, this law would,
"allow the government to seize reporters'
records without notifying them for 45 days - a period of time that could
be renewed by a judge 45 additional days - if investigators convince a
judge pre-notification 'would pose a clear and substantial threat to the
integrity of a criminal investigation.'"
This power of seizing records without notifying
reporters was used most recently in regards to
the Associated Press, when
the federal government seized their phone records in May of last year, with
the government only saying that,
"they were needed for investigation of an
unspecified criminal matter."
Oh yes! What transparency and accountability!
Infringing upon the First Amendment rights of
reporters and then only giving what is essentially a BS, purposefully vague
In addition to this, the government can force
journalists to give up information in the name of national security.
This is quite worrying as the US government has time and time
again been involved in operations of entrapment.[7,8]
Due to this, they could potentially have a
scenario where they create a case of entrapment, label it terrorism, and
then force all journalists to give up information on any and all sources as
well as seize their records under the guise of national security.
Yet in this current bill, not only can the
government continue to engage in the above behavior, but they are also
defining who is and who is not a journalist.
Initially, the bill defined a journalist as,
person who has a 'primary intent to investigate events and procure material'
in order to inform the public by regularly gathering information through
interviews and observations" and added the stipulation that, "the person also must intend to report on
the news at the start of obtaining any protected information and must
plan to publish that news."
This seems to be rather fine as it would include
mainstream and independent journalists.
However, the situation became problematic when
in September 2013, an amendment to the bill was proposed that - let's just
say - 'more clearly' defined who and who was not a journalist.
Kevin Gostolza of
Firedoglake discussed this amendment last year and it would be
appropriate to quote him now at some length:
A "covered journalist," under the
amendment, would be the following:
independent contractor, or agent
of an entity or service that disseminates news or
information by means of newspaper
news website, mobile application
or other news or information service (whether distributed
digitally or other wise)
magazine or other periodical,
whether in print, electronic, or other format, or through
television or radio broadcast, multichannel video
programming distributor (as such term is defined in section
602(13) of the Communications Act of 1934 (47 U.S.C.
522(13)), or motion picture for public showing…
That person must also have the,
"primary intent to investigate
events and procure material in order to disseminate to the
public news or information concerning local, national, or
international events or other matters of public interest."
Or, that person should be engaged in
"regular gathering, preparation,
collection, photographing, recording, writing, editing,
reporting or publishing on such matters."
A person would also qualify as a
"covered journalist" if they had experience in journalism and had
"substantially contributed, as an author, editor, photographer, or
producer, to a significant number of articles, stories, programs, or
publications" in the past twenty years.
As Feinstein said, it would "cover a
legitimate journalist such as a Dan Rather who leaves his media
entity and takes to publishing freelance stories on the web."
Now, let's begin to take those paragraphs apart
and analyze them, bit by bit.
In the first paragraph, the law defines a
journalist as "an employee, independent contractor, or agent of an entity or
service that disseminates news or information" and then goes on to define
the many mediums by which the news can be disseminated.
Some of this language seems to be problematic.
What exactly do they mean by
Do they mean a freelancer?
Do they mean someone like myself who
researches and writes independently?
In the next paragraph, it adds a caveat to the
definition of journalist, stating that the individual in question must also,
"have the 'primary intent to investigate
events and procure material in order to disseminate to the public news
or information concerning local, national, or international events or
other matters of public interest.'"
How do you prove that this is one's
Do you just have to state as such?
And what do they even mean by the term
Isn't the main goal of most if not all
journalists to disseminate news to the public?
The final paragraph offers an alternative if one
is not with a mainstream source by stating that they are covered if,
"they had experience in journalism and had
'substantially contributed, as an author, editor, photographer, or
producer, to a significant number of articles, stories, programs, or
publications' in the past twenty years."
Does this mean that contributing to sites such
as Truthout and Alternet could qualify one as a journalist under this law?
Apparently, in an earlier version of the bill,
the law defined,
"journalists so narrowly that it excludes
bloggers, citizen reporters and even some freelancers,"
and thus the amendment was added.
However, this amendment seems to leave more
questions than answers.
In addition to this, many supporters of this
bill have been using some rather bellicose language.
For example, Senator Dianne Feinstein has
been quoted as saying that "real journalists draw salaries"
and stating that the First Amendment is "a privilege,"
which is rather worrying.
On top of all these other problems, former U.S.
Attorney General Michael Mukasey, has written that this bill would,
"give judges too much power to decide on
their own whether the disclosure of the information would be contrary to
the public interest and thus not protected."
This means the issue of deciding whether or not
information that is being withheld by journalists, say, sources for example,
violates the public interest in the form of national security would be
decided by judges.
If the judges do decide that the information
being withheld does violate the public interest, then the journalist would
be forced to hand over that information. While judges do from time to time
uphold the rights of the people, they seem to have often sided with the
national security state as of recent.
For example in 2010, a federal appeals court,
"ruled that former prisoners of the C.I.A.
could not sue over their alleged torture in overseas prisons because
such a lawsuit might expose secret government information,"
last year, the US Supreme Court decided to "allow the National Security
Agency's surveillance of domestic telephone communication records to
This year it was reported that the US Supreme
"rejected [the Center for Constitutional
Rights] lawsuit against Bush-era warrantless surveillance, which
"guarantees that the federal courts will never address a fundamental
question: Was the warrantless surveillance program the NSA carried out
on President Bush's orders legal?"
Thus, it seems that the situation of on whose
side the courts would rule in a case regarding national security is rather
This is made all the more strenuous by the fact
that if a case were to make it up all the way to the Supreme Court and they
ruled in favor of the US government, it has the potential to set a precedent
which could only be overturned by an entirely new Supreme Court case.
As of now, there are conflicting reports about
whether or not Chuck Shumer (D.-N.Y.) has the votes to pass the bill
in the Senate, with Schumer saying he does and Sen. John Cornyn
(R-Texas) saying he doesn't.
However, if it does pass, there is no doubt
about it going into law as Obama has already voiced his support for it.
By essentially giving the government the power
to define what a journalist is, it has the potential to hurt independent
media when it is needed now more than ever.
The mainstream media consistently sits on
stories to please the US government. It was reported in 2006 that the New
York Times made a decision to,
"[withhold] a story about the Bush
administration's program of illegal domestic spying until after the 2004
More recently, the US media reported again and
again that the Syrian government had 'used chemical weapons'
in Ghouta and
that the United
Nations report confirmed it , when in reality, the
question is still up in the air as new information has come to light that
puts the official narrative in doubt.
We need independent alternatives to the
mainstream media like
Citizen Radio, and
Black Agenda Report to allow people to get
a glimpse behind the wall of misinformation that permeates much of the
mainstream and get an idea of what is truly going on in the world.
If this law gives the government the power to
define who a journalist is, we may just lose that.
1: Society of Professional
Journalists, Shield Law 101: Frequently Asked Questions,
2: Rem Reider, "Media Shield Law Moves
Forward," USA Today,
(September 12, 2013)
3: Chris Palmer, Josh Stearns, "The
Journalism Shield Law: How We Got Here," Free Press,
(August 6, 2013
4: Steven Nelson, "Holes in Media Shield Law
Worry Opponents, and Even Some Supporters," US News,
(September 18, 2013)
5: Roger Yu, "Feds Seize AP Phone Records
For Criminal Probe," USA Today,
(May 13, 2013)
6: Zoë Carpenter, "Flawed Media Shield Law
Goes to the Senate Floor," The Nation,
(September 13, 2013)
7: Alex Newman, "FBI Celebrates Foiling Its
Own Terrorist Plot, Again," The New American,
(October 18, 2012)
8: Glenn Greenwald, "The FBI Again Thwarts
Its Own Terror Plot," Salon,
http://www.salon.com/2011/09/29/fbi_terror/ (September 29, 2011)
9: Tim Cushing, "Sen. Feinstein During
'Shield' Law Debate: 'Real' Journalists Draw Salaries," Techdirt,
(August 8, 2013)
10: Kevin Gosztola, "Media Shield Law, Which
Aims to Protect Only 'Real Reporters,' Moves Onward to the Senate,"
(September 12, 2013)
11: Free Press, (August 6, 2013)
12: Morgan Weiland, "Why Sen. Feinstein Is
Wrong About Who's a 'Real Reporter,'" Electronic Frontier Foundation,
(August 9, 2013)
13: Mark Whitney, "Dianne Feinstein
First Amendment Is A Special Privilege,"
14: Jacob Gershman, "Mukasey: Beware the
Proposed Media-Shield Law," Wall Street Journal,
(December 2, 2013)
15: Charlie Savage, "Court Dismisses a Case
Asserting Torture by C.I.A.," New York Times,
(September 8, 2010)
16: Bill Mears, "Supreme Court allows NSA to
continue looking at telephone records for now," CNN,
(November 8, 2013)
17: Kevin Gosztola, "Supreme Court Declines
to Hear Case That Would Have Challenged NSA Warrantless Surveillance of
(March 4, 2014)
18: Fox News, Schumer: Senate Has Votes for
Media Shield Law,
(March 21, 2014)
19: Hadas Gold, "Cornyn: Schumer Doesn't
Have Votes for Shield Law," Politico,
(March 27, 2014)
20: David Jackson, "Obama backs 'Shield Law'
for Reporters," USA Today,
(May 15, 2013)
21: Barry Grey, David Walsh, "A Damning
Admission: New York Times Concealed NSA Spying Until After 2004
Election," World Socialist Web Site,
22: Bill Chapel, "U.N. Report Confirms
Chemical Weapons Were Used In Syria," NPR,
(December 12, 2013)
23: Matthew Schofield, "New Analysis of
Rocket Used In Syria Chemical Attack Undercuts U.S. Claims," McClatchy,
(January 15, 2014)