Earlier this year, news came out that Congress was trying to write a shield law to "protect" journalists. This probably sounds reasonable to you, even altruistic, but the question remains: Why shield journalists at all? We have a shield law that covers all speech. It's called the First Amendment.
We don't need Congress deciding who's worthy of judicial protection. Who is going to determine what a legitimate journalist is today? Do you have to have press credentials? Is a mere blogger-or anyone who publishes anything outside the confines of an official news organization-worthy of Congress' protection?
My first reaction when I heard Congress was debating this idea was visceral: My stomach dropped. Congress defining a journalist in a modern context-what could possibly go wrong? They have the best interests of all writers and journalists at heart, I'm sure. And they have a full sense of the power the internet has to make everyone a publisher-to give everyone the right to speak their minds regardless of whether they work for a traditional 20th-century news organization or are sitting in a room somewhere alone with a PC. (Can you sense my sarcasm?)
Members of Congress--some of whom reportedly still have their emails printed for them--very likely have no notion of the modern internet. It's even more likely that Web 2.0 and the power those tools brought to enable individuals to produce, publish, and share content virtually passed them by. The social and mobile internet? They may vaguely understand "The Twitters" exist because it's so mainstream, but would they understand that it is itself a channel for distributing news in real time? Many probably would not.
Would they have a clear concept of WikiLeaks and other similar drop-box services as a news distribution channel? Chances are they wouldn't because they would have trouble looking past the enigmatic personality of WikiLeaks founder Julian Assange. Or perhaps they believe that he was leaking U.S. secrets and is less worthy of press protection than, say, The New York Times might be if it printed the same information (which it did).
Do you suppose members of congress could imagine news distribution methods that we haven't even thought of yet, which could be part of an undefined future wave of change and distribution? No. Yet here they are, these men and women who have very little tech savvy, trying to define the meaning of a journalist in an age when the definition is a moving target precisely because of technological innovation.
Against this shifting backdrop of change, why would you even attempt to define a journalist in rigid, legal terms?
As we went to press, the Electronic Frontier Foundation was reporting that the Senate Judiciary Committee had released an amended bill in which they decided not to try defining journalists, but they left it up to the discretion of a judge to decide who was a journalist and who wasn't for the purpose of receiving shield protection from the government on a case-by-case basis.
In some ways, drafting a law that doesn't define a journalist is worse than creating one that does because it leaves the definition to each judge to decide. One person might think Assange should get press protection. Another would very likely decide he doesn't. That creates a potential Wild West of legal decision making.
The fact is that our forefathers defined freedom of the press in 18th-century terms because they were trying to protect pamphleteers such as Thomas Paine and newspapers that supported their cause from government interference. These people needed access to a printing press to get their word out.
Today, anyone with an internet connection has the means to produce and publish content to a wide open delivery channel. This democratization of the press would, I dare say, have pleased the Founding Fathers.
Surely Congress is trying to be helpful here, but in doing so, they are making the matter much worse and threatening freedom of the press much more than no law at all would. The fact is we have a constitutional amendment that already protects the press, and we really don't need another law muddying the waters.