What's a Journalist?

Among journalists, almost no one disputes the need for a federal shield law. Among politicians, the cause is not as noble. Journalists have been lobbying Congress for a shield law for six years, but Congress hasn't passed one yet.

Success never seemed closer at hand than it did last December, when the 2009 Free Flow of Information Act was passed out of the Senate Judiciary Committee 14-5. A different version of the bill had cleared the House the previous March by unanimous voice vote. Senators Dianne Feinstein of California and Dick Durbin of Illinois had voted the bill out of committee on the understanding that before the Senate took it up they'd get to amend it.

"Feinstein has issues with bloggers and she always has had," says Kevin Smith, who stepped down last week as president of the Society of Professional Journalists. "She doesn't want bloggers to have any of the similar protections that legacy journalists do." "Feinstein has always been the one taking the lead," says Laurie Babinski, an SPJ attorney. "Her reservations have had to do with the definition as it relates to bloggers and electronic journalism—where to draw the lines. SPJ has always been of the mind you define a journalist by what they're doing—a journalist is someone who commits an act of journalism. The problem is, it's not the bright line some would like to see." Next to the categorical right to keep their mouths shut that the courts give lawyers, clergy, and spouses, what the Free Flow of Information Act offers journalists with sources to protect looks like Swiss cheese. Even so, it requires prosecutors seeking names to jump through some hoops—namely, to first persuade a federal judge of the vital importance of the information they're after and the impossibility of getting it any other way. Only with the judge's permission could a prosecutor subpoena a reporter and drag his or her butt into court.

But who deserves even this modest consideration? Any legislator who writes a shield law protecting journalists has to define journalists and justify the special treatment. We are talking, after all, about a freedom to inform, which can't easily be broken out of the bedrock freedom of speech that's guaranteed to one and all. If journalists, like lawyers, were credentialed, the law would be easy to write; but American journalists aren't a guild and God willing they never will be. A journalist, as Laurie Babinski puts it, is anyone doing journalism.