US dilemma: Who is a journalist?

The business of journalism and the role of the journalist have come into sharp focus recently in the US with the Congress trying to define who a journalist is. With the growth in non-traditional news gatherers such as citizen-journalists and bloggers, the US government is attempting to separate the “real journalist” from the non-traditional ones.

In May this year, Senator Charles Schumer (Democrat, New York) sponsored a bill, The Free Flow of Information Act of 2013 (S. 987), also known as the Federal Shield Law, that says a journalist is a person who has a "primary intent to investigate events and procure material." It has been approved by the Senate Judiciary Committee and now awaits the full Senate vote. This is the third time the Senate has grappled with this issue, with two earlier attempts failing despite both the Democrats and Republicans showing their support. Currently, journalists are protected under the First Amendment from disclosing their sources or confidential information unless a judge thinks such information is vital and government officials have no other alternative to obtain the necessary information.

The Federal Shield Law will seek to protect journalists from court-ordered subpoenas to reveal sources of information not published earlier. Forty-nine states, with the exception of Wyoming, have enacted Shield Laws which deal only with state cases. Journalists have been hauled in federal courts for not disclosing their sources and failure to comply means fines or jail term.

In fact, the current bill is a revised version of the bill that was approved by the Senate Judiciary Committee in 2009 but got stalled in the Senate. It was found that its provisions were weak as it didn't define "journalist" but rather called those engaged in newsgathering as "covered persons." The struggle to get the Federal Shield Law has been going on since 2006, and on April 1, 2009 it passed in the House. But in October the Obama administration made changes to the bill and then a compromise was worked out between the administration officials, senators and news organisations.

In December 2009, the Senate Judiciary Committee approved the bill but it lost support in the Senate. After another updated version was introduced in 2011 and that too got stalled in the Senate, the Obama administration asked Sen. Schumer to reintroduce the bill in May this year.

An important provision of the bill is the "Judicial Discretion” which gives the judge power to extend the Shield Law’s protection to any person if "on the specific facts contained in the record, the judge determines that such protections would be in the interest of justice and necessary to protect lawful and legitimate newsgathering activities under the specific circumstances of the case."

As for the Standing Committee of Correspondents, which issues congressional press passes, reporters must have full-time jobs and must be paid for their work. US President Barack Obama himself has offered his two bits on the issue by saying, "It used to be there were local newspapers everywhere. If you wanted to be a journalist, you could really make a good living working for your hometown paper. Now, you have a few newspapers that make a profit because they are national brands, and journalists are having to scramble to piece together a living, in some cases as freelancers and without the same benefits that they had in a regular job for a paper."

He further added, "What's true in journalism is true in manufacturing and is true in retail. What we have to recognise is that those old times aren't coming back."

In the general world of journalism, however, the debate is multifold -- from holding that journalism is slipping away from its traditional moorings to the onslaught of websites, some aggregating news from many sources, to the dangerous yet promising world of WikiLeaks, whose founder Julian Assange is on the wanted list of the US police. Senator Dianne Feinstien, a Democrat from California, expressed her doubt if the bill would cover those who worked for WikiLeaks, which depend on confidential sources as well as anonymous ones.

At a recent panel discussion organised by Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, PBS News Hour’s investigative reporter Scott Armstrong, one of the critics of the bill, said, “There’s not a national security reporter that I can find who supports the shield law because it won’t protect us. We’re going to get exempted out of it one way or another.”

Writing on the Columbia Journalism Review’s website, Newton noted, “The panel’s attorneys disagreed. Karen Kaiser, associate general counsel at the AP, Kevin Goldberg, counsel for the American Society of News Editors, and Lucy Dalglish, dean of the Phillip Merrill College of Journalism at the University of Maryland, all said that the Senate version of the bill has a clause to, as Dalglish put it, “give you a shot at getting rid of a national security-related subpoena.”

The issue of who is a "real journalist" came up in the US as far back as 1972 in the Branzburg vs Hayes case that discussed whether journalists had special privileges under the First Amendment to withhold the identity of their sources. Since then, the issue has dogged media scholars and, despite what the bill seeks to achieve, it will keep on engaging the minds of both the academics and the lawmakers.

The recent case of arrest of AP journalists whose telephone records and phone conversations were seized by the Justice Department raised a hornet's nest in the journalism fraternity. Under the bill, the Justice Department would have to notify the reporter whom it wants to monitor.

Since Glenn Greenwald of The Guardian was provided with leaks by Edward Snowden there has been a division of opinions among journalists, with some feeling that journalists shouldn't seek nor print information that would harm national security interests and some others maintaining that any covert or secret work by the government should be open game for journalists. Snowden, who worked for a contractor engaged by the National Security Agency (NSA), copied files of records of the agency surveillance activities.

The arrest and harassment of Greenwald's researcher partner, David Miranda, at Heathrow Airport, raised the ire of those who are for freedom of the press. Arresting Miranda on the basis of the UK Terrorism Act was a gross misdemeanor on the part of the UK authorities and it added fuel to the US and UK's aggressive war on leaks and their misguided stance of criminalising journalism.

The Snowden scandal brought back memories of The Pentagon Papers, the name given to the secret documents of US military involvement in the Vietnam War. The photocopied documents were leaked out by military analyst Daniel Ellesberg to The New York Times, as Ellesberg was an anti-war supporter. It was a triumph for journalism when the US government failed to stop the paper from publishing the documents from a secret study by the Department of Defence. When it comes to national security issues of any country, it's always a thin line, almost blurry, which journalists have to negotiate.

However hard the government may try to legally debar journalists from poking their noses into the murky world of government surveillance, there's always a chance that someone in the government would let the world know if something rotten is taking place.

The Federal Shield Law also has some critics who feel it divides journalists into two classes. Writing on the Index on Censorship website, Josh Stearns, journalism and public media campaign director at Free Press and a founding board member of the Freedom of the Press Foundation, says, "The first class is protected by default. It includes people who have been employed by newsrooms for at least one year in the last 20 years, or for three months in the last five years. This is actually an improvement over an earlier version, but still excludes many freelancers, bloggers and citizen journalists. For those not in that class, the bill allows a judge to decide if “such protections would be in the interest of justice and necessary to protect lawful and legitimate newsgathering.” This “judicial discretion” catchall means a broad range of acts of journalism could be protected, but raises questions about the necessity of the first definition of journalist.”

The Society of Professional Journalists (SPJ) says it a “difficult question” to define a journalist. It states, “Once a “journalist” is defined then before long the government might start raising the idea of licensing journalists, which can lead to a form of censorship that is found in other countries. In general, SPJ favors a functional definition in the shield bills that defines “journalism” rather than “journalist.” In other words, a definition that provides protection to those who “commit acts of journalism,” rather than focusing on a job title or employment status.”

At the above-mentioned panel discussion on the “who is a journalist” question, Newton reports that Armstrong remarked, “You give us a definition and you’re beginning to paint us into a corner.” But, as Newton adds, Armstrong’s view was not the panel’s. Lawyers said the bill’s current definition is a good one. There are three ways you can be a “covered journalist.” First, you can work for an organisation that collects and distributes news or information to the public, and be in the act of doing that during the case in question. Second, if you freelance for a news or information organisation, or have worked for one in the past, or are a journalism student. Or third, if a federal judge says, in the interest of justice, you should be covered.”