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Nieman Journalism Lab
Pushing to the future of journalism — A project of the Nieman Foundation at Harvard

Shield law: Definition of “journalist” gets professionalized

Last week, as the Senate Judiciary Committee prepared to vote on a federal shield law, I wrote about the competing definitions of a journalist in the House and Senate versions of the bill. Well, I have bad news on two fronts: The Judiciary Committee didn’t vote on the shield law, but it did adopt an amendment that would exclude amateur journalists from protection.

Previously, the Senate was working with a version of the shield law (S. 448) that defined a journalist in broad terms, focusing on the process and craft of newsgathering. That stood in contrast to the House version (H.R. 985), which passed in March and defines a journalist as someone who gathers news and information “for a substantial portion of the person’s livelihood or for substantial financial gain.”

On Thursday, according to the Reporters Committee for Freedom of the Press, Sen. Chuck Schumer (D-NY) offered an amendment to the Senate version that hews toward the professional definition in the House. Under the amendment, which was adopted by the Senate Judiciary Committee, a journalist is defined as someone who:

(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(II) that—
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service;

As I observed last week, the shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job.

                                   
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  • http://dherrera.org Dave

    I’m not a legal expert, so I need help here: Even if I’m a student journalist or occasional blogger, what’s stopping me from calling myself an “independent contractor” for wherever and thus falling under the law’s protection? How difficult would it be for a few lawyers to come up with a simple, generic form that legally makes me a contractor for a Web site — no money involved or anything, just a formal step? “X hereby is expected to attempt to try to write no fewer than 1 word for Y” or something like that.

  • http://www.greglinch.com Greg Linch

    Could this limited definition be challenged on First Amendment grounds?

  • http://www.magellanmediapartners.com Brian O’Leary

    I’m troubled by both the failure to protect part-time or occasional journalists, but I am even more struck by the word “and” between parts (I) and (II). An employee or affiliate of a purely digital entity (say, the Huffington Post) that does not publish “a newspaper, book, magazine, or other periodical” is not protected, unless “programming service” means “blog”.

  • Stuart Watson

    Some time ago the Poynter Institute asked six investigative reporters if they supported the concept of a shield law.

    I found myself the lone dissenter.

    Reason? Because of precisely what Zach and the good folks at the Nieman lab are now reporting.

    As I wrote at the time, “I don’t believe in shielding CBS and the New York Times and *not* shielding the indie video activist and the freelance blogger, our new found pamphleteers.”

    When Congress – hell any gubmint official – puts their arm around you, don’t walk away, run.

  • Lenny Smith

    So does this mean that newspapers that shut down their printing presses and go only online will not be protected either? Scary how this stuff works its way into the mix.

  • http://cartercole.com Carter

    look its liberals who proposed the change hmm

  • http://www.strobist.com David Hobby

    As someone who worked in traditional print media for 20 years as a staff photographer, and has since worked as a F/T blogger for the last three, this is about the stupidest framework for the shield law that I can imagine.

    Any law that effectively defines journalism by the specific medium which conveys the information will be out of date the day it goes into effect.

  • http://www.24hourtrasding.co.uk/blog/ Rob Scott

    This is a ludicrous definition! I’d recommend leaving the country then publishing what you like online…

  • http://mostmodernist.com/ Johnny Honestly

    BOOOO CHUCK BOOOO

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  • http://mediactive.com Dan Gillmor

    If there’s a need for a shield law, let it protect journalism, not the specific people we call journalists.

    This bill is a trap — a licensing system. Not surprising that the DC press corps seems to be in favor, but this is poison.

  • Joshua K.

    Only comment–besides BOO HISS!–is that Chuck Schumer ain’t no liberal. He’s just a corporate lackey from New York who picked the party that is more likely to hold office in New York.

  • http://pwtenny.newsvine.com/ Paul William Tenny

    “As I observed last week, the shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job.”

    These laws would create a new and separate class of people that have rights that nobody else does. They seem like a good idea but the result is unacceptable. It doesn’t matter how broad the definition is, if it doesn’t encompass everyone, then it’s a violation of the equal protection clause.

    The press have survived just fine without a federal shield law and they don’t need one now. Let them live under the law just like the rest of us have to.

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  • Jean P

    I was a working journalist for more than 35 years, and I say to hell with a shield law. If I am doing my job and not breaking existing laws, not violating anyone’s constitutional rights (corny as that may sound in the 21st century), why do I need a shield law?

  • Matt

    I don’t think this will hold up to constitutional muster, as it wouldn’t apply to freelance either.

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  • SoCalGal

    “Citizen journalists,” my ass. It’s time to professionalize journalism. If you want to be considered a journalist and gain First Amendment protection reasonably afforded a journalist, get some training that means something. Earn it and don’t give me that Thomas Paine crap. Journalism as a profession is going down the toilet at an accelerating speed. In fact, it’s not even a profession, it’s a J-O-B. If you haven’t graduated from an accredited university with a degree in journalism with at least one course in ethics and media law, by what standard, if any, are you even calling yourself a journalist? Is Diane Dimond a journalist? Hell, no, but she calls herself one. As far as shielding bloggers, screw that. No one even knows who they are. Journalism is in Wild West mode and needs regulating. If it doesn’t regulate itself, I see the time when the government will have to step in and regulate it in some way, thereby doing damage to the First Amendment. However, that amendment says that “Congress” shall pass no laws abridging press freedom; the President or the Supreme Court could certainly do something. I’m glad I saw this article. I’m going to write to my senator, Diane Feinstein, and urge her to stick to her guns. Not everyone is a “journalist” just because they, or even their employer, calls themselves a journalist. Poor Walter Cronkite and other giants of real journalism; they’re spinning in their graves.

  • SoCalGal

    My new mantra: License! License! License ‘em all! I can’t get my teeth cleaned without seeing a licensed hygienist. Why are joooornalists not licensed? For cryin’ out loud, people are running around, influencing policy, spreading their venom on television and in print, with no training whatsoever. I swear, Satan himself runs the media. It’s his instrument of terror. The problem is medialoid–defined as the infiltration of tabloid journalism into traditional media sources, including the proliferation of sensationalism, triviality and disregard for privacy, with particular emphasis on news coverage of the sports and entertainment industries. Medialoid thinks they make the rules by which society must live. They think they define what is and is not free speech. They have no morals, no decency and no shame. What we have is not qualified reporters reporting on newsworthy topics but packs of bloodthirsty jackals always on the prowl for their next victim. Ka-ching! They hide behind the First Amendment while they tear down society by pandering to humankind’s basest instincts. From their presumed position as the final arbiters of what people should think and what they should be thinking about, they smell blood in the water and circle the victim like a bunch of braying hyenas. Ka-ching! I hope you jooornalists are all proud of yourselves. Michael Jackson…now Tiger Woods. Tiger isn’t the one who should be ashamed—except before his wife. Medialoid should be ashamed for the disreputable way they behave when a high profile personality stumbles. Ugh. I hate the media. You all make me sick. Shield indeed. From what? Clean up your act and maybe we’ll talk about a shield.

  • http://Voteaim.com William Luther

    License the right to protection? Who gets to authorize the license? Where would one have to apply and who decides thumb up or thumb down. The emperor?

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  • SoCalGal

    Well, William Luther, who licenses physicians and CPAs and lawyers? You’ve got to prove you’re reasonably trained to be a physician, CPA or lawyer. Why should just anyone be able to call himself a journalist, get on TV and start influencing policy and people’s opinions? Think, man! Why should you be able to call yourself a joornalist, say anything you wish and be under the protection of a shield law?

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  • Peter

    Earn First Amendment Protection?

    It seems to me the First Amendment, as well as the other nine, are rights, not privileges. They aren’t things to be earned. They aren’t up for licensing. I can understand concerns with respect to declining professionalism, but I don’t think perverting our First Amendment Right to a free press is any kind of solution. I do not think the cause of this decline has anything to do with bloggers or the First Amendment. I suspect it has more to do with the fact that since the 80s PR firms realized the best way to be effective was to hire the good news people away from the papers. They were terribly under paid and over worked. If anything would raise the professionalism of media “professionals,” it would be to make half of what their counterparts who work as PR consultants.

    I don’t see how restricting the scope of the First Amendment would solve the problem or how it is even Constitutional. It would seem to me the fundamental nature of freedom of the press is that the government can’t infringe on the freedom of the press. Isn’t defining who are or what is the press infringing on that freedom?

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  • Anonymous

    Doctors shouldn’t be licensed, either. Doing so is not in the interest of consumers, but it does vastly increase physician salaries and charges. Doctors, nurses, drug companies, and hospitals are licenses and  heavily regulated, yet an estimated 200,000 Americans die each year due to preventable medical errors.