IS DOJ licensing or unleashing the press? Column

Glenn Harlan Reynolds | USATODAY

Last week, stung by reactions to phone-snooping on reporters (and, in at least one case, a reporter's parents), the Justice Department issued new guidelines for dealing with the media when investigating leaks. Many people are cheering these guidelines, but I'm not sure they're good enough.

I have two problems: First, in the incidents mentioned above, according to Associated Press President Gary Pruitt, the Justice Department violated its old guidelines. If the Justice Department didn't follow its own rules before, why is it more likely to follow the new rules? Ultimately, it's hard to trust an administration that seems to see every legal requirement as, like ObamaCare, waivable when inconvenient.

My second problem is more general. Does this policy protect anyone doing journalism, or just members of the establishment? The Justice Department talks about protection for "news media" (the guidelines don't use the word "press") but doesn't provide any guidance on just who that is. Presumably, if you're drawing a paycheck from the New York Times or Gannett (the parent company of USA TODAY), you're covered. (But note that, not too long ago, the Obama administration was claiming that Fox News, home of James Rosen, one of the key targets of recent Justice Department snooping, was not a "legitimate news organization.") If the Justice Department can pick and choose in this fashion, the guidelines don't mean much.

But even if the guidelines extend to everyone who draws a paycheck as a reporter or pundit -- hey, I guess that would include me -- that's still not enough. In this era of blogging, social media and independent journalism, there are an awful lot of people doing serious journalism who aren't drawing a paycheck from a media organization. They deserve protection, too. Journalism is an activity, not a profession.

James O'Keefe -- who has a new book out, Breakthrough: Our Guerrilla War To Expose Fraud And Save Democracy -- has conducted a number of daring undercover exposes of voter fraud and financial abuse, one of which led Congress to defund the corrupt ACORN social-activist group. Independent journalists such as Michael Totten, Michael Yon, J.D. Johannes, and Bill Roggio covered the wars in Iraq and Afghanistan in ways that traditional media seldom did -- for the most part, supported by donations directly from their readers. No media paycheck there.

And the most stunning on-the-scene reporting today -- from Egypt, for example, or the scene of the Asiana air crash last week -- comes via Twitter, blogs and Facebook. Those people aren't drawing a media paycheck either, but they're doing real reporting. Why should they get short shrift?

Government licensing of the press is one of the biggest First Amendment no-nos. But if the government is in the business of deciding who counts as a "legitimate news organization" -- and, more importantly, who doesn't -- then the result looks suspiciously like a licensing scheme of some sort.

It also looks kind of clubby. Washington is already rife with crony capitalism, but if these protections are limited to Big Media journalists it starts to look a lot like crony journalism. The administration gives journalism's old-boy-network a pass, in exchange for not rocking the boat too much, while leaving itself free to go after the very outsiders who are most likely to do hard-hitting investigations.

Not coincidentally, NBC talking head David Gregory -- highly sympathetic to the Obama White House -- recently asked blogger Glenn Greenwald, who broke the Edward Snowden/NSA story, if he was a "real journalist," with the strong implication that he was not. He's certainly broken more stories critical of the White House than Gregory has.

Journalism, especially in the 21st century, isn't the paid profession of a favored few. It's an activity in which all Americans can take part. If the Department of Justice isn't prepared to acknowledge that, then it hasn't really addressed its problems at all.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

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