The Franklin Center was founded on the belief that journalists come in countless shapes and sizes. Unfortunately, the Senate is assaulting this diverse network of people who make up the free press and narrowing it to more established media organizations!
Senator Chuck Schumer recently claimed that he had the votes to pass Senate Bill 987, the “Free Flow of Information Act.” The bill would give federal judges power to determine whether a journalist qualifies for protection from government intrusion under the First Amendment.
What does this mean? The law would prevent journalists from being forced to reveal their sources or turn over materials they have used in their investigations. However, not all who practice journalism would be covered. This law allows the government to decide who is a protected “journalist” based on arbitrary measures like salary, employer, and frequency of publication – excluding bloggers and other independent journalists. Rather than providing a “shield” so that the government cannot force journalists to reveal confidential sources, it offers protection only for those who fit a professional definition of the term.
At best, the proposed law would have little impact, but we have reason to believe it could end up having a decidedly negative effect. As the Washington Examiner editorial team wrote, “the law already says releasing classified information harms national security, so Schumer’s bill creates a gaping hole that federal prosecutors will surely exploit.”
Therein lies the issue: the law would put discretionary power in the hands of judges to determine whether journalists can protect their sources, undermining First Amendment rights. When a journalist can’t guarantee to a source that he or she will remain anonymous, that source will be less likely to reveal secrets. Should we expect a potential whistleblower to take solace in the possible ruling of a federal judge? Probably not.
“Even if judges ultimately attempt to protect journalists on a case by case basis under the act,” writes Robert Romano in NetRightDaily, giving them the benefit of the doubt, “the threat of prosecution of journalists will undoubtedly have a chilling effect on speech.”
Trevor Timm, executive director of the Freedom of the Press Foundation, echoes this concern arguing that this bill will not only fail to improve press freedom, but will in fact “weaken rights reporters already have and make it easier for the government to get sources from reporters.” As defenders of a robust free press, we don’t believe this would put America on a healthy trajectory, as a frightened press corps will soon turn into the state’s lapdog when it should be its watchdog.
With it’s narrow-minded understanding of how the media operates, Senator Schumer’s bill is simply blind to the realities of the digital age. Imagine the news cycle without the work of people like Michelle Malkin, Andrew Breitbart, or Matt Drudge. All made their mark first as non-traditional journalists – nobodies with computers breaking big stories until America had no choice but to listen. They are no different from the rest of us: citizens who took action in their communities and shared their observations. The rights of the new 21st-century journalist must be protected and preserved.
“Since when do journalists need ‘clear and convincing evidence’ they serve some vital public interest in order to exercise their First Amendment rights?” Romano asks. “Why would we let federal judges be the final arbiter of what leaks of classified information were in the public’s interest? Isn’t it for the public to decide what was in their interest?” Unfortunately, the Free Flow of Information Act fails to offer a satisfying answer.
At the Franklin Center, we believe in the both the power and the constitutional right of private citizens to keep government accountable through the free press. Elected officials, of all people, shouldn’t get to decide who does and doesn’t get to investigate and write about them. Unlike Senator Schumer, we believe that for journalists, it’s not the newspaper you report for so much as what you report that defines you. With a government prone to waste, fraud, and abuse, America needs the press to be free to speak truth to power without fear of legal repercussions. Any act of journalism deserves protection under the law. That’s why we have the First Amendment!