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Analysis: Shield law debate focuses on definition of journalist

This article originally appeared in the St. Louis Beacon: The Senate Judiciary Committee voted in favor of a federal "shield" law on Thursday, but still refused to include Julian Assange, Edward Snowden or citizen bloggers in the group of protected journalists.

A shield law allows a journalist to protect a confidential source unless the government can present a compelling reason, such as national security, to demand the source's name. Most states have shield laws but there is no federal law.

The disclosure earlier this year that the Justice Department had subpoenaed the phone records of about 100 AP reporters and editors as part of a leak investigation, led Congress to take up the shield law over the summer. The Obama administration, trying to escape bad publicity about the AP subpoenas, reaffirmed its support for the bill.

But the sticking point is who is a journalist. Sens. Dianne Feinstein, D-Calif., and Richard Durbin, D-Ill., didn't want to include Assange of WikiLeaks fame among protected journalists. Some media lawyers - such as James Goodale who represented The New York Times during the Pentagon Papers case in 1971 - have claimed that Assange should be protected because he is the publishing equivalent of Arthur Ochs Sulzberger Sr., the Times publisher.

The bill that passed out of the Senate committee 13-5 makes sure Assange isn't covered by stating that a journalist does not include a person "whose principal function, as demonstrated by the totality of such person’s or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization."

Nor does the Senate bill include citizen bloggers or groups, such as the Nazis, that publish websites that are not considered new sites

To be covered the journalist has to have the “primary intent to investigate events and procure material in order to disseminate to the public news or information" of public interest or has to be engaged in the “regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters.”

Still, the Senate's definition is broader than an earlier version of the bill because it includes former journalists who no longer have a work arrangement with a publisher - a Dan Rather, for example. It also allows judges to decide that individuals deserve to be considered journalists.

One critic of the bill, Sen. John Cornyn, R-Texas, argued that Congress deciding who is a journalist was akin to licensing - traditionally anathema to a free press. He said, ”Any carve out of particular media for protection and special treatment is in effect government licensing of legitimate media.”

Even if the bill passes the Senate, it is not expected to win in the House.

For more, see an Atlantic article.

Definition of a journalist

According to what passed out of the Senate committee, a journalist is "...an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or other wise); news program; magazine or other periodical, whether in print, electronic, or other format; or through television or radio broadcast, multichannel video programming distributor ... or motion picture for public showing…"

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