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Dianne Feinstein, the senior US Senator from California, has never been a fan of the press, dating back to her days as a local official in San Francisco. Now, from her perch as a high-ranking and powerful member of Congress, Feinstein has far more political influence; sadly, she is using it to try to extend the authority of the government to determine who is what she calls as a “real reporter” and who is not, and thus undeserving of new protections for journalists to be provided in pending legislation to establish a new federal shield law.

Today, in the second part of a two-part series, Morgan Weiland of the Electronic Frontier Foundation looks at Feinstein’s key role in the debate over the shield law.

By Morgan Weiland
Electronic Frontier Foundation

During the Senate Judiciary Committee’s August 1 mark-up of the shield law bill aimed at protecting journalists’ sources, Sen. Dianne Feinstein (D-CA) reportedly objected to the definition of journalist provided in the bill as introduced, seeking to restrict the definition’s scope to apply only to “real reporters.” To achieve her misguided goal, Sen. Feinstein has put forward an amendment to S. 987 that would greatly exacerbate the problems with the definition of who’s a journalist that existed in the bill as introduced.

Her amendment, to be submitted for Sen. Dick Durbin (D-Il.) as well, not only retains the problematic requirement that a person “regularly” engage in journalism to enjoy shield law protections, but moreover adds new requirements that would make it especially difficult for self-publishers such as independent bloggers and citizen journalists to be protected under the law. Indeed, her new requirements for being either salaried or at least affiliated with a news “entity” seem to purposefully target these self-publishers.

These problems are rooted in the vagueness of many key terms in her definition of journalist. Indeed, most essential terms are not defined. While vagueness provides an interpretative battleground, self-publishing bloggers and citizen journalists are disadvantaged in this fight.

Three Roads to “Journalist” that All Go Nowhere

Feinstein’s amendment effectively advances a traditional vision of journalism through the three definitions of journalist that it provides, each of which requires that a person be affiliated with a journalistic “entity” or institution (including news websites and other digital news services, and other periodicals distributed digitally).

Specifically, the amendment requires that a journalist meet one of the following definitions:

1. working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”

2. either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or

3. working as a student journalist “participating in a journalistic publication at an institution of higher education.” (emphases added)1

There are problems with each of these three definitions. First, as we pointed out in our critique of the House’s bill, requiring that an individual is “salaried” is problematic because many people do journalism but do not do it as their primary source of income. Further, it is entirely unclear who or what an “agent” or “entity” is.

Second, for an individual to fall under the second, seemingly looser criteria, that individual must have distributed the news “by means of an entity.” (emphasis added)2 While this definition may cover freelancers, it is again unclear what it means to have “substantially contributed” to a “significant” amount of work of an “entity.” Indeed, for both the first and second definitions, essential terms are not defined—vagueness that, as we’ll see later, ultimately hurts independent bloggers and citizen journalists.

While the amendment’s inclusion of student journalists is laudable, it does nothing for those students who do not work for a “journalistic publication” at their college or university—or for those students the moment they graduate.

Still Requiring that Journalists “Regularly” Engage in Journalism

Additionally, Sen. Feinstein’s amendment retains the original Senate shield bill’s problematic requirement that individuals “regularly” do journalism to count as a journalist. Specifically, the amendment requires either:

1. that individuals “engage in . . . the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on” matters of public interest; or

2. that individuals “regularly conducted interviews, reviewed documents, captured images of events, or directly observed events.” (emphases added)3

As in the original Senate bill, the amendment fails to define what “regularly” means, vagueness that cuts against non-institutional journalists.

Vague Language Is Bad for Independent Bloggers, Citizen Journalists

Sen. Feinstein’s amendment is riddled with vague language, failing to define key terms including “agent,” entity,” “substantially contributed,” and “regularly”—on which the definition of who’s a journalist turns. Non-traditional journalists are at a disadvantage when the interpretative waters are muddy. Why? Because such vagueness invites interpretations that exclude those who are on the margins of status quo journalism, and who are often in a more vulnerable position and unable to hire legal counsel to sort through the law’s ambiguities. As a result, independent bloggers and citizen journalists would likely be interpreted out of Feinstein’s definition of journalist.

The very fact that developing a crisp, clear definition of journalist is difficult should signal to Congress that it might not be equipped to wade into the uncharted waters of deciding who is a journalist. But it’s a problem that Congress can easily avoid by linking shield law protections to the act of journalism, not the definition of who is journalist.