The Senate Is Busy Creating a Privileged 1st Amendment Club for ‘Official’ Journalists

Posted by on September 24, 2013 in Censorship, Government, Politics, Whistleblower with 0 Comments

By Carey Shenkman (AlterNet)

On September 12, 2013, the U.S. Senate Judiciary committee narrowly defined who the law should consider to be a journalist, by  amending the proposed Free Flow of Information Act (“FFIA”). The FFIA is a “shield law” that protects journalists from having to reveal their confidential sources when confronted with court subpoenas. The amendment changed the language of the bill from protecting the activity of journalism to protecting the  profession. Journalists are now limited to those employed by, recently employed by, or substantially contributing to media organizations for certain minimum durations.

This maneuver skirts the substantial investigative role served by independent journalists, bloggers, and nontraditional media, who are left unprotected by the statute. It also expressly excludes whistleblower organizations. By not extending protection to a vital segment of investigative newsgatherers, the amended FFIA falls short of providing real benefits. More fundamentally, the distinctions created by the bill reinforce a privileged club for journalists. In essence, the government is licensing the press, and treading down a path that  courts have for decades cautioned “present[s] practical and conceptual difficulties of a high order.”

The original FFIA, which took a functional view of journalists, adhered much more closely to the current academic trend—that journalism is an  activity, not a  profession.

Another logical pitfall of the law is its explicit exclusion of whistleblower organizations, like WikiLeaks, from its narrow definition of journalism.

The issue then is not so much that nontraditional media entities lack editorial standards, but that Congress disapproves of these standards. It is the same logic that leads the FFIA to exclude a good number of bloggers and independent journalists who may not adhere to traditional institutional editorial standards.

Indeed, the whole FFIA amendment is permeated by an undertone of institutional elitism and a rejection of new media.

Biases of lawmakers should not become law. Courts, since decades before the advent of the Internet, have avoided creating classes for journalists. It creates unsustainable logical contradictions and is ultimately bad for investigative reporting. In the  words of Professor Linda Berger, “[N]o patriot printer or colonial pamphleteer had a journalism degree. Certification by a government agency or by a professional group carries the possibility of de-certification based on value judgments or viewpoints.” Legislation like FFIA teeters this country closer to a future where journalism bears the government’s stamp of approval.

Read more: The Senate Is Busy Creating a Privileged 1st Amendment Club for ‘Official’ Journalists

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