Sen. Dianne Feinstein has lobbied hard for protection of 'real reporters.' Blogs rail over bill defining media

Bloggers across the political spectrum are up in arms over the proposed media shield bill a Senate committee passed on Thursday, blasting the measure’s definition of a journalist as a flawed and misguided effort targeting those who operate outside of traditional media.

“The entire approach is misguided. I think that journalism is an action, it’s not a status, it’s not a membership. And I think they’re treating it like a membership and they’re doing it in a way that is intended to be basically rent-seeking for the larger players in the field,” Hot Air’s Ed Morrissey told POLITICO. “It’s just a bad idea.”


The Senate Judiciary committee on Thursday approved legislation that would protect reporters, with exceptions, from being forced to disclose confidential sources. The bill was passed with an amendment that defined a “covered journalist” as an “employee, independent contractor or agent of an entity that disseminates news or information.” Or, as Sen. Dianne Feinstein (D-Calif.) said, “real reporters,” and not just anyone with a website.

“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,” she said, according to the Los Angeles Times.

The “journalist” would also have to have been employed for a one year period within the last 20 years, or for a three-month period within the last five years. Student journalists would also be covered, as well as those “whom a federal judge has decided should be able to avail him or herself of the protections of the privilege, consistent with the interests of justice and the protection of lawful and legitimate newsgathering activities.”

But the shield law would not cover any person or entity whose principle purpose “is to publish primary source documents” without authorization — sites like WikiLeaks, for example. There would also be an exception “to prevent terrorist activity or harm to the national security,” according to the bill. The measure, sent to the floor with a 13-5 vote, came to the fore after the news broke the Dept. of Justice had monitored and tracked journalists from The Associated Press and Fox News.

The Drudge Report’s Matt Drudge tweeted on Friday about the proposed law, writing, “Gov’t declaring who qualifies for freedom of press in digital age is ridiculous! It belongs to anyone for any reason. No amendment necessary.”

He added that Feinstein’s comments yesterday on who constitutes a reporter “were disgusting. 17-year old ‘blogger’ is as important as Wolf Blitzer. Fascist!”

“Federal judge once ruled Drudge ‘is not a reporter, a journalist, or a newsgatherer.’ Millions of readers a day come for cooking recipes??!” he tweeted.

Morrissey, who on Friday wrote a blog post on the issue, said he’s fairly confident he and other writers for the conservative blog Hot Air would be covered by the proposed federal media shield law, as the site is owned by Salem Communications. But that doesn’t mean he thinks it’s good idea, he said.

“I think that any definition of a reporter in a media organization would probably include us or Huffington Post, owned by AOL, so it’s kind of the same thing, one from each side of the aisle and relatively speaking in the same sort of organizational position,” he said. “Let me put it this way: I’m confident that we would be covered as anybody else would be, with the caveats I mentioned – which is this ambiguous idea of national security being an exception to this. This loophole is huge.”

The overall intent of the definition is to “narrow the reach of whistleblowers,” Morrissey said, and that’s going to impact those on both sides of the aisle.

“If you’re a source that has information about government malfeasance and this shield law only protects certain people from turning over their sources, you know, who are you going to go to? You’re not necessarily going to go to Erick Erickson over at RedState or Markos Moulitsas at Daily Kos,” he said. “You’re going to go to somebody who’s going to be covered by the shield law, so it’s basically a licensing law.”

Conservative radio host and blogger Dana Loesch, meanwhile, wrote the shield law’s definition of a journalist specifically targets right-leaning bloggers.

“Because the conservative blogosphere is so successful, this is how they’ll come after it,” she tweeted.

And defining a journalist, as the committee did on Thursday, is not a decision for the government to make, several bloggers agreed. Instapundit blogger Glenn Reynolds, a law professor at the University of Tennessee, wrote that “we should protect journalism, not journalists,” while National Review Online’s Michael Walsh said the bill “has nothing to do with protecting journalists, and everything to do with the Government Class protecting itself from those who would expose its activities.”

“Under the guise of ‘protection,’ the Permanent Bipartisan Fusion Party is moving toward its real goal of licensing journalists and creating an American version of Britain’s Official Secrets Act,” he wrote on his blog post for The Corner, “There Ought to Be No Law.”

Morrissey also pushed back against the government making a claim on the definition of a journalist. “if you’re going to have a shield law, and I think that there’s a debate to whether you actually should, then it should protect the process of journalism and not try to define who and what are journalists,” he said.

And The Nation’s Zoë Carpenter knocked the proposed law for its extensive loopholes, particularly pointing to the national security exception. Because of that loophole, Carpenter wrote in a blog post for the liberal magazine, “the law may not shield the reporters who need it most.”

“As written, the Senate bill would not protect journalists if the government could make the case that the information sought would assist in mitigating ‘acts that are reasonably likely to cause significant and articulable harm to national security, a phrase so full of ambiguities as to be essentially useless,” she wrote.

Firedoglake’s Kevin Gosztola pointed out the legislation is “flawed because it should cover all citizens who engage in acts of journalism from being forced to give up their confidential sources.”

Bloggers are not all “dropouts or people who spew hate-filled speech on blogs they purchased for five dollars,” he wrote, and so the perception that giving them “protection would threaten national security and sully the profession of journalism should be challenged.”

“One can only conclude that this version of a shield law is motivated by a bias against bloggers, particularly ‘citizen bloggers.’ These are not ‘professional journalists’ and could not be ‘professional journalists’ in their eyes,” Gosztola wrote. “Yet, I would argue, although they may not be a part of any official press associations or employed by any established media organizations, they may engage in good tradecraft and practice ‘professional journalism’ on a regular basis independently. This may even be something that person does in addition to their job, and they would deserve to enjoy the same additional First Amendment protections as any professional employed journalist.”

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