'Shield'ing the People from Independent Journalism: The Free Flow of Information Act of 2013 and its Slippery Slope

Devon Douglas-Bowers I Politics & Government I Commentary I April 10th, 2014

Currently being debated by the Senate, but rarely discussed on mainstream television, is the Shield Law. While on the surface it may seem to be rather innocuous, some of the language in it and its implications are quite problematic for journalists.

A Shield Law is a law which "provides statutory protection for the 'reporters' privilege'- legal rules which protect journalists against the government requiring them to reveal confidential sources or other information."[1] Generally, this is a positive occurrence as journalists are much more able to conduct their work and bring information to public light if they do not need to worry about having to reveal their sources. While Shield Laws have occurred in the past, they have only been on the state level. This currently proposed Shield Law is the first one to reach the federal level, and the main goal is to protect journalists from having to reveal confidential sources in federal cases. [2]

If the law were to pass, there would still be certain instances in which journalists must reveal sources, such as "(1) The party seeking disclosure has exhausted all reasonable alternative sources of the information; (2) The requested information is essential to resolving the matter; (3) Disclosure of the requested information would not be contrary to the public interest; and (4) In criminal cases, if the requesting party is the federal government, the government must show that there are reasonable grounds to believe that a crime has occurred."[3]

While, overall, it may seem like a good bill, there are a number of problems with this particular Shield Law, officially known as theFree Flow of Information Act of 2013. For starters, it would "allow the government to seize reporters' records without notifying them for 45 days - a period of time that could be renewed by a judge for 45 additional days - if investigators convince a judge that pre-notification 'would pose a clear and substantial threat to the integrity of a criminal investigation.'"[4] This power of seizing records without notifying reporters was used most recently against the Associated Press in May of last year when federal officials seized phone records under the justification that "they were needed for the investigation of an unspecified criminal matter."[5] Oh yes! What transparency and accountability! Infringing upon the First Amendment rights of reporters and then only giving what is essentially a BS, purposefully vague explanation.

In addition to this, the government can force journalists to give up information in the name of "national security". [6] This is quite worrisome when considering the US government has time and time again been involved in operations of entrapment.[7][8] With this in place, there is greater potential for creating a scenario based on entrapment, labeling it "terrorism", and then forcing all journalists to give up information on any and all sources as well as seize their records under the guise of national security.

This current bill not only allows the government to continue to engage in the above behavior, but it also attempts to define who is and who is not a journalist. Initially, the bill defined a journalist as "a person who has a 'primary intent to investigate events and procure material' in order to inform the public by regularly gathering information through interviews and observations," adding the stipulation that "The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news."[9] This seemed to be a reasonable definition as it included mainstream and independent journalists. However, the situation became problematic when, in September of 2013, an amendment to the bill was proposed that - let's just say - 'more clearly' defined who is and who is not a journalist.

Kevin Gostolza of Firedoglake discussed this amendment last year and it would be appropriate to quote him now at some length:

A "covered journalist," under the amendment, would be the following: 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 otherwise); news program; magazine or other periodical, whether in print, electronic, or other 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…

That person must also have 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." Or, that person should be engaged in the "regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters."

A person would also qualify as a "covered journalist" if they had experience in journalism and had "substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications" in the past twenty years. As Feinstein said, it would "cover a legitimate journalist such as a Dan Rather who leaves his media entity and takes to publishing freelance stories on the web." [10] (emphasis added)

Now, let's take those paragraphs apart and analyze them, bit by bit.

In the first paragraph, the law defines a journalist as "an employee, independent contractor, or agent of an entity or service that disseminates news or information" and then goes on to define the many mediums by which the news can be disseminated. Some of this language seems to be problematic. What exactly do they mean by "independent contractor?" Do they mean a freelancer? Do they mean someone like myself who researches and writes independently?

In the next paragraph, it adds a caveat to the definition of journalist, stating that the individual in question must also "have 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.'" Well, how do you prove that this is one's primary intent? Does one merely have to state as such? And what do they even mean by the term "primary intent?" Isn't the main goal of most, if not all, journalists to disseminate news to the public?

The final paragraph offers an alternative if one is not with a mainstream source by stating they are covered if "they had experience in journalism and had 'substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications' in the past twenty years." Does this mean that contributing to sites such as Truthout and Alternet could qualify one as a journalist under this law?

Apparently, in an earlier version of the bill, the law defined "journalists so narrowly that it excludes bloggers, citizen reporters and even some freelancers,"[11] and thus the amendment was added. However, this amendment seems to leave more questions than answers.

In addition to this, many supporters of the bill have been using some rather bellicose language. For example, Senator Dianne Feinstein has been quoted as saying that "real journalists draw salaries"[12] while referring to the First Amendment is "a privilege," [13] which is rather worrisome.

On top of all these other problems, former U.S. Attorney General Michael Mukasey has written that this bill would "give judges too much power to decide on their own whether the disclosure of the information would be contrary to the public interest and thus not protected." [14] This means the issue of deciding whether or not information that is being withheld by journalists - say, sources for example - violates the public interest in the form of national security would be assumed by judges. If the judges do decide that the information being withheld does violate the public interest, then the journalist would be forced to hand over that information.

While judges do, from time to time, uphold the rights of the people, they seem to have often sided with the national security state as of recent. For example, in 2010, a federal appeals court "ruled that former prisoners of the CIA could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information."[15] Last year, the US Supreme Court decided to "allow the National Security Agency's surveillance of domestic telephone communication records to continue." [16] This year it was reported that the US Supreme Court "rejected [the Center for Constitutional Rights] lawsuit against Bush-era warrantless surveillance, which "guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush's orders legal?"[17] Thus, it seems that relying on unbiased judgment from the courts regarding cases of "national security" is rather iffy. This is made all the more strenuous by the fact that if a case were to make it all the way to the Supreme Court and they ruled in favor of the US government, it has the potential to set a precedent which could only be overturned by an entirely new Supreme Court case.

As of now, there are conflicting reports about whether or not Chuck Schumer (D.-N.Y.) has the votes to pass the bill in the Senate, with Schumer saying he does[18] and Sen. John Cornyn (R-Texas) saying he doesn't. [19] However, if it does pass, there is no doubt about it going into law as President Obama has already voiced his support for it.[20]

By essentially giving the government the power to define what a journalist is, this bill has the potential to hurt independent media at a time when it is needed more than ever - a time when the mainstream media consistently sits on stories to please the US government. A glaring example of this occurred in 2006 when the New York Times made a decision to "[withhold] a story about the Bush administration's program of illegal domestic spying until after the 2004 election."[21] More recently, the US media reported again and again that the Syrian government had used chemical weapons in Ghouta and that the UN report confirmed it[22] when, in reality, the question is still up in the air as new information has come to light that puts the official narrative in doubt.[23] We need independent alternatives to the mainstream media - like Corbett Report, Citizen Radio, and Black Agenda Report - to allow people to catch a glimpse behind the wall of misinformation that permeates much of the mainstream, and get an idea of what is truly going on in the world. If this law gives the government the power to define who a journalist is, we may just lose that.


[1] Society of Professional Journalists , Shield Law 101: Frequently Asked Questions, https://www.spj.org/shieldlaw-faq.asp

[3] Chris Palmer, Josh Stearns, "The Journalism Shield Law: How We Got Here," Free Press, http://www.freepress.net/blog/2013/08/06/journalism-shield-law-how-we-got-here (August 6, 2013)

[4] Steven Nelson, "Holes in Media Shield Law Worry Opponents, and Even Some Supporters," US News, http://www.usnews.com/news/articles/2013/09/18/holes-in-media-shield-law-worry-opponents-and-even-some-supporters (September 18, 2013)

[5] Roger Yu, "Feds Seize AP Phone Records For Criminal Probe," USA Today, http://www.usatoday.com/story/news/2013/05/13/justice-department-associated-press-telephone-records/2156521/ (May 13, 2013)

[6] Zoë Carpenter, "Flawed Media Shield Law Goes to the Senate Floor," The Nation, http://www.thenation.com/blog/176166/flawed-media-shield-law-goes-senate-floor (September 13, 2013)

[7] Alex Newman, "FBI Celebrates Foiling Its Own Terrorist Plot, Again," The New American, http://www.thenewamerican.com/usnews/crime/item/13263-fbi-celebrates-foiling-its-own-terror-plot-again (October 18, 2012)

[8] Glenn Greenwald, "The FBI Again Thwarts Its Own Terror Plot," Salon, http://www.salon.com/2011/09/29/fbi_terror/ (September 29, 2011)

[9] Tim Cushing, "Sen. Feinstein During 'Shield' Law Debate: 'Real' Journalists Draw Salaries," Techdirt, https://www.techdirt.com/articles/20130807/13153224102/sen-feinstein-during-shield-law-debate-real-journalists-draw-salaries.shtml (August 8, 2013)

[11] Free Press , (August 6, 2013)

[12] Morgan Weiland, "Why Sen. Feinstein Is Wrong About Who's a 'Real Reporter,'" Electronic Frontier Foundation, https://www.eff.org/deeplinks/2013/08/why-sen-feinstein-wrong-about-whos-real-reporter (August 9, 2013)

[13] Mark Whitney, "Dianne Feinstein First Amendment Is A Special Privilege," https://www.youtube.com/watch?v=bywtn9RIDRw

[14] Jacob Gershman, "Mukasey: Beware the Proposed Media-Shield Law," Wall Street Journal, http://blogs.wsj.com/law/2013/12/02/mukasey-beware-of-the-proposed-media-shield-law/ (December 2, 2013)

[15] Charlie Savage, "Court Dismisses a Case Asserting Torture by C.I.A.," New York Times, http://www.nytimes.com/2010/09/09/us/09secrets.html?pagewanted=all&_r=0 (September 8, 2010)

[16] Bill Mears, "Supreme Court allows NSA to continue looking at telephone records for now," CNN, http://www.cnn.com/2013/11/18/politics/supreme-court-nsa-phone-records/ (November 8, 2013)

[17] Kevin Gosztola, "Supreme Court Declines to Hear Case That Would Have Challenged NSA Warrantless Surveillance of Lawyers," Firedoglake, http://dissenter.firedoglake.com/2014/03/04/supreme-court-declines-to-hear-case-that-would-have-challenged-nsa-surveillance-of-lawyers/ (March 4, 2014)

[18] Fox News, Schumer: Senate Has Votes for Media Shield Law, http://www.foxnews.com/politics/2014/03/21/schumer-senate-has-votes-for-media-shield-law/ (March 21, 2014)

[19] Hadas Gold, "Cornyn: Schumer Doesn't Have Votes for Shield Law," Politico, http://www.politico.com/blogs/media/2014/03/cornyn-schumer-doesnt-have-votes-for-shield-law-185862.html (March 27, 2014)

[20] David Jackson, "Obama backs 'Shield Law' for Reporters," USA Today, http://www.usatoday.com/story/news/politics/2013/05/15/obama-schumer-associated-press-shield-law/2161913/ (May 15, 2013)

[21] Barry Grey, David Walsh, "A Damning Admission: New York Times Concealed NSA Spying Until After 2004 Election," World Socialist Web Site,http://www.wsws.org/en/articles/2006/08/nyti-a22.html (August 22, 2006)

[22] Bill Chapel, "U.N. Report Confirms Chemical Weapons Were Used In Syria," NPR, http://www.npr.org/blogs/thetwo-way/2013/12/12/250572623/u-n-report-confirms-chemical-weapons-were-used-in-syria (December 12, 2013)

[23] Matthew Schofield, "New Analysis of Rocket Used In Syria Chemical Attack Undercuts U.S. Claims," McClatchy, http://www.mcclatchydc.com/2014/01/15/214656/new-analysis-of-rocket-used-in.html (January 15, 2014)