For the first time ever, Congress has crafted a piece of legislation that determines whether or not a person is a journalist, in a bill designed to give federal protection to journalists and bloggers from being forced to disclose the identities of their confidential sources. This would mean that before the government could ask a news organization or a journalist to identify their sources, it must first go to a federal judge, who would supervise any subpoenas or court orders for the information.

But the legislation comes with a catch. In order for a person to be protected under the bill, one must first meet the criteria for being termed a “journalist” — and even then, journalists will not be protected in all situations.

Though freedom of speech, which includes the printed word, is protected under the First Amendment, media shield laws are supposed to go above and beyond in terms of protecting a journalist from being forced to disclose confidential information and sources.

The Senate Judiciary Committee passed the bill, the Free Flow of Information Act of 2013, on Thursday in a 13-5 vote. Though most states have their own media shield laws, they vary in terms of protections for reporters. If the legislation passes, this would be the first federal media shield law.

At the urging of Sen. Dianne Feinstein (D-Calif.), the committee defined what they considered “journalism” as well as who qualified to be labeled as a “journalist.” Feinstein said legal protection should only be extended to “real reporters” and not a “17-year-old” with their own website.

Originally the bill would have covered all persons who “investigates events and obtains material to disseminate news and information to the public.” But this was altered as part of a compromise between the members of the committee.

“I think journalism has a certain tradecraft. It’s a profession. I recognize that everyone can think they’re a journalist,” Feinstein said. “I can’t support it if everyone who has a blog has a special privilege … or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there.”

Feinstein was one of a few Senate Judiciary Committee members who expressed concern about revealing classified information in the press.

By contrast, Sen. Patrick Leahy, (D-Vt.), chairman of the Judiciary Committee, said, “One of the things that protect democracy is the free flow of information,” and added that the public learned valuable information about the NSA after Snowden released classified documents earlier this year.

What is journalism? Who is a journalist?

Under the new legislation, protected journalists would include those who gather and report on news for “an entity or service that disseminates news and information,” whether they be freelancers, part-time staff or student journalists. Journalists also have to have been employed for one year within the last 20 years or three months within the last five years.

The language the committee used in its definition of a journalist also allowed for a federal judge to extend the journalist protection legislation to any organization that proved it conducts “legitimate news-gathering activities.” What counts as “legitimate” news-gathering was not explicitly defined, however.

The federal legal protections for news outlets and media personnel will not be extended to organizations such as WikiLeaks, which discloses “primary-source documents … without authorization.” Additionally, non-journalists who disclose information on Twitter, blogs or other social media sites will not be protected under the proposed federal media shield law.

While the bill purports to protect journalists, it does not grant absolute privilege to any person or any organization. “Real reporters” will also be forced to share information if federal officials believe the information could stop or prevent crimes such as murder, kidnapping, child abduction, acts of terrorism or that otherwise cause significant harm to national security.

Supporters of the legislation say the bill is likely to pass the Democrat-controlled Senate, but its fate remains uncertain in the Republican-led House. Opponents expressed concern that the bill did not take into consideration efforts to protect national security interests and unconstitutionally allowed the government to determine who is a journalist.

The Reporters Committee for Freedom of the Press said that if the bill does become law, it “goes a long way toward ensuring that reporters will be protected from subpoenas for their confidential information and sources. … While is it not as inclusive as we would like, it is not nearly as limited in that area as previous attempts at a federal shield law have been.”

Sen. Charles E. Schumer (D-N.Y.) also applauded the bill, saying, “We’re closer than we’ve ever been before to passing a strong and tough media shield bill. Thanks to important bipartisan compromises, we’ve put together a strong bill that balances the need for national security with that of a free press.”

One of the five votes cast against the media protection measure was from Sen. John Cornyn (R-Texas), who called the legislation a diversion by the White House, pointing out it was introduced three days after news broke that the government had secretly subpoenaed two months’ worth of phone records for staff at the Associated Press and had obtained a secret search warrant to review emails of Fox News journalist James Rosen.

“A new law is not what we need,” Cornyn said, regardless of whether the Obama administration has “been the most abusive to the press in modern times.” He said the fact that the Senate was debating who should be considered a journalist should be “chilling to us all,” but during the meeting said only American journalists should be protected.

However, the Texas senator noted that putting such legislation into place would likely prevent the Obama administration and future administrations from overstepping their authority.

DOJ revamps media guidelines

After the revelations that media organizations were being spied on emerged earlier this summer, President Obama told the Justice Department to develop guidelines to protect journalists and pledged his support for the pending media shield bill.

In July, U.S. Attorney General Eric Holder released seven new media guidelines for the Department of Justice. Arguably the biggest alteration was that reporters would be notified within 45 days of a request from the DOJ to turn over communications or business records. The extended time period also allows a news organization or journalist to challenge the government’s need to review the materials.