The Press Pass Shield

by Tracy Thompson

CCJ Traveling Curriculum trainer and contributing writer Tracy Thompson is a former Washington Post and Atlanta Journal-Constitution reporter and the author of two books: The Beast: A Journey Through Depression and The Ghost in the House: Motherhood, Raising Children, and Struggling with Depression. She blogs regularly here.

Way back when I was still young and green enough to be thrilled to be in possession of an honest-to-God press pass, an old-timer passed on a piece of wisdom. “Having a press pass,” he said, “has kept me out of a lot of places I coulda gotten into if I hadn’t had a press pass.”

I wasn’t sure what he meant at the time, but I learned soon enough. We’ve all had the experience of hearing about some meeting and showing up, only to see what was nominally a public event suddenly turn into a get-together of close friends who desperately need some alone time. It didn’t take me long to realize that, assuming I could do it without misrepresenting myself, I’d have been better off just showing up as an ordinary citizen. It takes a certain amount of incivility to eject the average citizen for no particular reason, but nobody worries about being rude to reporters.

It was this paradox, in fact, that led me to the conclusion long ago that it’s a mistake to draw artificial distinctions between journalists and average citizens—and this was before the Internet. I was in the minority, though; most salaried journalists I knew back then were excessively fond of those distinctions, and secretly yearned for an opportunity to make some heroic stand in defense of journalistic principle, whether or not one was called for. (See: Judith Miller.) I got into fairly serious trouble with my bosses at the Washington Post once, when I witnessed an arrest in the parking lot of the Greyhound Bus Terminal in Washington, D.C. one night while I was reporting a story on search-and-seizure law, and (stupidly) mentioned something to a former law school classmate about it over drinks the next night. Bad move: my old classmate worked in the public defender’s office. Next thing I knew, I was getting subpoenaed.

My editors were aghast, and so was I, but for different reasons. I was appalled I’d been so loose-lipped; they were appalled I might be forced to appear in court. Forced? I wasn’t forced. I had no confidential sources to protect; for that matter, I had nothing to say that was of any particular use to either side. Still, the way I saw it, I was under precisely the same obligation as any other person who might’ve been passing through on that parking lot on his way to catch the 1:10 a.m. to Poughkeepsie. I believe there are citizen journalists; I also believe that journalists are citizens.

The distinction, if any, between journalists and everybody else comes to mind in the context of the federal shield law for journalists currently pending before the Senate Judiciary Committee. Press groups, who have been advocating such a bill for years, were thinking that this year might actually see its passage. That is, they did up to late last month, when Sen. Chuck Schumer (D-NY) suddenly reversed his previous stance and proposed an amendment that would limit the bill’s protections to employees or independent contractors of recognized media entities—in other words, the “pros.” Bloggers and citizen journalists would be left out in the cold, as would any freelancer pursuing a story he or she didn’t have a buyer for yet, and anybody who produces his own newsletter. The pros could invoke such a law to protect themselves from having to reveal their sources--as long as doing so did not imperil national security interests.

According to the Huffington Post’s congressional correspondent Ryan Grim, the real force behind Schumer’s very restrictive amendment is most likely the Justice Department—and, if you look at this strictly from the standpoint of a lawyer whose client is the executive branch of government, that would make sense. In the Internet era, when anybody with a laptop and access to WiFi can have his own blog up and running in seconds, having a broad definition of “journalist” means it would be tough for the Justice Department to subpoena anybody who wouldn’t seek the protection of a federal shield law. It’s hard to see how that prospect would appeal to them.

Not surprisingly, journalists are unanimous in thinking that the Schumer amendment is a rotten idea. We’ve come a long way from the days when journalists regarded themselves as heroic, lonely figures making a stand against the forces of mindless authority; when it comes to legal matters, today’s journalists are developing a newfound appreciation for all those bloggers and amateurs they once distanced themselves from. Why? For one thing, given the parlous state of the media industry these days, any salaried reporter is acutely aware that he or she might be a freelancer by this time next week. More importantly, the boundary between the media pros and the media amateurs have become so porous that any law which affects one is liable to constrain the other. Remember the Southeastern Conference attempt last August to impose penalties on any fan who caught some juicy video tidbit of a game and posted it to YouTube? It wasn’t bloggers who forced the SEC to revise its rules; it was folks like the Associated Press—and, trust me, they were not motivated not by solicitude for bloggers.

I go with the media party line on the Schumer amendment; I think it’s a bad idea, too. But I have a contrarian reputation to establish here. I reach this conclusion not because I think it would significantly imperil the free gathering and dissemination of information in any measurable way, or make journalism any harder than it already is. I think it would be a bad thing because a broad definition of “journalist” would, in a very specific way, make life harder for our government. How? Because it would leave the Justice Department only one weapon with which to force a citizen journalist (or a journalist citizen, for that matter) to disclose his sources—i.e., the argument that some aspect of national security is at stake.

“National security” is a phrase that can turn judges into putty, at least when it is uttered by a Justice Department lawyer. Exhibit A here is the Foreign Intelligence Surveillance Court in Washington, D.C., established by 1978 legislation of the same name, for the purpose of reviewing government requests to conduct wiretapping or surveillance of suspected foreign agents in this country. In 2007, according to the Washington Post, the Justice Department filed 2,370 such applications before the FISA court. The judges denied exactly three—a number which civil rights groups say indicates the application process is pretty much a rubber-stamp affair. Is it? Hard to tell. FISA court hearings are conducted in secret.

The 1-in-2,370 statistic is not one the average laymen knows much about; for that matter, the average layman probably doesn’t even know such things as FISA courts even exist. Federal courts, on the other hand, are fairly well known and generally open to the public. They’re logical places for the government to at least summarize a case that the disclosure of sources is necessary for the sake of national security. That means anybody, journalist or not, can walk in and evaluate what’s going on for himself.

And that, to me, is the big issue in the federal shield law debate—not how to define “journalist” or even how to define “newsworthy.” (I say this because Huffington Post columnist Jason Linkins has suggested limiting any federal shield law’s protection to disseminators of “newsworthy” information. If there’s anything harder to define than “journalist,” it would be “newsworthy.”) The big issue here is under what conditions the government can invokes the cause of national security and whether it does so in a way that is even minimally accountable to its citizens. As it stands now, “national security” is pretty much legalese for “because we said so.” Isn’t that issue at least as troubling as who gets to wear a press pass?

http://www.rcfp.org/newsitems/docs/20090918_122243_91709_amendment.pdf

http://www.huffingtonpost.com/2009/10/01/why-did-sen-schumer-attem_n_306661.html

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1004005855

http://www.washingtonpost.com/wp-dyn/content/article/2009/03/01/AR2009030101730_2.html