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Proposed shield law comes close to government licensing of reporters

COMMENTARY | August 08, 2006

‘Free flow’ Act defines journalists as those who get paid by news organizations to help produce news or information. Gil Cranberg has a problem with that.

By Gilbert Cranberg

I ought to be an enthusiastic booster of the reassuringly titled federal Free Flow of Information Act, also known as the federal shield law. After all, its Iowa court-created counterpart kept me out of jail. I could have landed there if I had balked at a subpoena ordering me to be questioned and to turn over to county officials my notes on a local horse-track controversy I had written about. Thankfully, a judge quashed the subpoena after ruling I was entitled to invoke Iowa’s protection for journalists.

I was thrilled by the ruling, but also troubled by it. The key issue in the case was whether I was a journalist. The county argued I had been when I worked at the Des Moines Register but ceased being one when I retired. My attorney showed the court the many pieces published in the Register and elsewhere after I left the paper, and the judge concluded I had been “continuously engaged in journalistic reporting, writing and editing” since I retired and “was a journalist.” With that, I had become a bona fide court-certified journalist.

And that’s what’s troubling. Some nations license journalists, but we supposedly do not. And yet a government official, a judge, after examining my published work, had officially proclaimed me to be a journalist. If that isn’t licensing, it’s uncomfortably close to it.

Which brings me to the proposed Free Flow of Information Act. The press has been generally supportive, but I wonder about the measure, and the press ought to as well. It should be asking whether, in return for shield protection, it would be making a Faustian bargain.

Does the press really want Congress to be decreeing who is a journalist? Congress itself seems to be unsure how to go about it. The 2005 version of the shield proposal says it covers “an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information”  for a broadcast or other news outlet. The 2006 version ties the definition of “journalist” strictly to money: a person who “for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, reporting, or publishing news or information as a salaried employee of or an independent contractor” of a news organization.

The 2006 definition disposes of the troublesome question of bloggers, but at the cost of turning the issue of who is a journalist on its head. Instead of making what journalists do central to the definition, the focus is placed on what publishers do – specifically, whether they pay. If yes, there would be protection, if no, go directly to jail. In a manner of speaking.

I have dealt with many publications through the years. Some pay, some do not. Among the latter are Nieman Reports and this Web site. Policies on paying for pieces depend on a host of business factors unrelated to journalism. If it is a for-profit company, is it in a belt-tightening mode? Are major stockholders unhappy with the stock price? Are newsprint costs going through the roof? And so on. The same article, representing unmistakable journalistic effort, sent to several publications can be published in multiple places and produce everything from a check in the mail to nary a thank-you or even word that it was used or a clip. Maybe we need a law mandating pay for certified journalists.

A number of states with shield laws do not bother with the tricky business of defining “journalist.” They leave that to the courts, which, presumably, can follow the dictum of Justice Potter Stewart who declared of hard-core pornography that he could not define it “but I know it when I see it."

Journalists know a lot about what they do and ought to weigh in on the definition. But first, they need to address and resolve the bedrock question of whether the federal government, as a matter of principle, should be engaged in the quasi-certifying of journalists.

And while pondering that, they could well ask whether passage of the Free Flow of Information Act would produce more news accounts based on anonymous sources. It is reasonable to suppose it would. That would be good for the public if, as advertised, the law induced more insiders to confide in journalists knowing they would be protected. But would the public necessarily be more reliably informed? USA Today for years banned the use of anonymous sources in the well-founded belief that anonymity encourages exaggeration and lies. Recall that Colin Powell’s now-discredited speech to the United Nations cited at least 40 unidentified sources. Need I say more than “Curveball”?

So is it the Free Flow of Information Act or the Freedom to Fabricate Act? Some of both, I suspect. Sorry not to be of more help, but I have not been re-certified lately.

Cranberg is right
Posted by John Anderson - I'm retired, but wrote for the Washington Post for many years.
08/07/2006, 08:03 PM

Mr. Cranberg is dead right. Letting judges decide who's journalist is a dangerously bad idea. It's only one step away from an official commission licensing journalists, like the commissions that license doctors and barbers.

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