Monday, August 19, 2013

Media shield laws, special privileges, and an expansive government

In the wake of recent events involving the Justice Department and its use of secret subpoenas to investigate certain reporters, Senators Chuck Schumer and Lindsay Graham have re-introduced legislation to establish a Federal media shield law, supposedly at the behest of the Administration. The bill, S.987, would make it more difficult for federal agencies to investigate reporters who are or had been involved with the leaking of information from inside sources.

Interestingly enough, Justice is fully behind the creation of such legislation, even though it has supposedly established new internal guidelines to limit its own activities in this regard. In essence, Justice wants Congress to pass such legislation to protect the department from itself, it would seem, as its own rules are somehow insufficient:
He [Holder] said the new guidelines — under which, most significantly, the records of a journalist will only be collected if that person is the focus of a criminal investigation — will make “a meaningful difference,” with the Justice Department effectively forgoing the opportunity to use search warrants to obtain journalists’ emails or other work product, as long as the reporters are engaged in routine newsgathering activities. 
But, Holder added, Congress needs to take further action by passing a media shield law, an idea the president also supports.
Now, the reality is that reporters are not special; their activities--when is comes to investigating or disseminating--should not provide them with special protections by virtue of their occupations, but nor should it allow them to be unduly targeted by government agencies. They deserve the exact same protections in this regard as everyone else. The much-ballyhooed "freedom of the press" established by the First Amendment was never intended to allow the infringement of rights for the "non-press," which once again hearkens back to Hamilton's warnings in Federalist #84 (my boldface):
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
And indeed, as if on queue, Dianne Feinstein comes forward with an amendment to the shield law legislation that does exactly what Hamilton anticipates. Concerned with the protections of this legislation extending too far, Feinstein has sought to absolutely limit who would be protected by explicitly defining who qualifies as a "jouranlist":
(5) JOURNALIST.—The term ‘‘journalist’’—

(A) means a person who—

(i) is, or on the relevant date, was, a salaried employee, independent contractor, or agent of an entity that disseminates news or information by means of newspaper, nonfiction book, wire service, news agency, magazine, news website or other news service distributed digitally, news program, or other periodical, whether in print or electronic 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;

(ii) with 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, engages, or as of the relevant date engaged, in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters by—

(I) conducting interviews; (II) making direct observation of events; or (III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;

(iii) had such intent at the inception of the process of gathering the news or information sought; and

(iv) obtained the news or information sought in order to disseminate the news or information to the public;
The definition continues in order to include editors, publishers, and "student journalists under the umbrella of protection, but then proceeds to exclude specific people from the same, including terrorist-types, agents of foreign powers, and--most significantly--this group:
(D) does not include any person—

(i) whose principal function, as demonstrated by the totality of such person’s work, is to publish primary source documents that have been disclosed to such person without authorization;
Quite clearly, this is a blatant attempt to exclude people like Snowden and contributors to groups like Wikileaks.

Feinstein's amendment is being roundly criticized for establishing this definition of who exactly would qualify for the protections ensconced in the shield law legislation mostly because of this last bit and because the definition would also exclude much of the blogosphere, the realm of "amateur" journalists as it were. But such criticism is ultimately misguided, for it is based on the erroneous idea that the definition of who is a journalist needs to be expanded for the purposes of enlarging the coverage of such shield laws. The amendment is still wrong, no doubt, but so is the initial legislation.

Understand that for Hamilton--for Madison and the other Federalists (and anti-Federalists, for that matter)--the idea of "the press" encompassed all such activity, no matter who was undertaking it or why; there was no line between "professional" and "amateur" in this regard. Such activities are still subject to the laws, however. Libel and slander can still be prosecuted, along with treason and a host of other things. Thus, no special protections were/are needed for the theoretical "press" because it was/is subject to the same laws--proceeding from a limited government--as was/is everyone else.

If it is to be argued that some sort of press shield law is an absolute necessity now, it can only be because the government is capable of exercising power it was never supposed to have. The fix, therefore, is not the creation of new protections--much less the creation of a special class of citizens--but rather the scaling back of government powers.

Cheers, all.

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