Pruning The Fourth Estate: Feinstein Seeks To Limit Who Can Claim To Be A Journalist

225px-dianne_feinstein_official_senate_photoI have previously discussed the curiosity of California’s Democratic leaders in Congress leading the fight for massive warrantless surveillance and attacks on privacy. California Senator Dianne Feinstein has long been viewed as hazard to civil liberties from her knowledge of the torture program to consistent support for the expansion of a security state system. Feinstein is now back in that ignoble role this week, fighting to limit the meaning of journalist to prevent bloggers and others from being able to claim protections from surveillance or compelled testimony. Illinois Senator Dick Durbin has joined Feinstein in seeking to define most people out of protections for media.

The irony is the Feinstein wants to add the limiting language to a Media Shield Law that has already been riddled with exceptions and holes by the Obama Administration. Feinstein is again serving as the agent for those who want to expand government powers — in this case under the guise of a bill purportedly limiting such powers.

Feinstein came out last week by insisting that bloggers and Internet writers are not “real reporters” despite the fact that most Americans now get their news from such sites. She wants to limit the term to people who are “a salaried agent” of a media company like the New York Times or ABC News. Thus, students in media graduate programs and bloggers would not qualify. She is concerned that the law could be used by whistleblowers and others to expose unlawful conduct and then claim protections from government investigations or attacks.

She does not of course define what constitutes a salary. Would this include freelancers? I am paid by USA Today per column. Is that a salary? Is a media professor salaried as a journalist when he is paid by his school but writes in a university publication?

This blog is ranked as one of the top most visited legal blogs in the world. We have a larger audience than columns associated with various newspapers, including the Legal Times. We produce five to seven new stores each weekday. We run new stories over the weekend. We reach millions of readers each year. Most local newspapers have circulations of less than 15,000. Does it not matter how large your readership is but rather whether you receive money for the work? If so, we would have to add advertising to generate revenue to qualify while a small town newspaper with a fraction of our readership would automatically qualify. There are legitimate questions about what constitutes a journalist for constitutional or statutory protections, but Feinstein is adopting a criteria clearly designed to exclude most writers today on politics and government.

As we have discussed, this effort is part of an overall effort to strip whistleblowers and journalists of status as the Administration seeks to prosecute them. Assange is the best example. He is not a journalist but rather just an Assange.

Feinstein’s limit would be added to litany of exceptions and holes in the bill. For example, the law would allow Justice Department officials to delay notice for a period of 45 days and then ask for an extension of an additional 45 days. That would mean almost 100 days of surveillance of reporters like the controversial cases of the Obama Administration.

Feinstein would add to these limits by excluding writers for outfits like Wikileaks or even recognized reporters who are writing for blogs without direct compensation. It is part of the continued effort to distract the public with measures meant to look like reforms but actually reaffirm the power of the government like President Obama’s highly criticized “reforms” announced last Friday. Rather than limit the government, it would now become a formal exclusion of the vast majority of people covering the government from protections. This is particularly a concern with the rising criticism of mainstream media in yielding to demands of the White House in covering stories like the Snowden affair or actively mocking critics of the government. We are often informed of these programs or developments by the foreign media or the bloggers that Feinstein wants to strip of protections. It is particularly ironic coming from the Senator representing the state with the largest number of bloggers in the country. Instead of their interests, Feinstein is representing the interests of the ever-expanding system of security state offices and officials.

The government is most concerned not with traditional media, but the power of sites like Wikileaks or bloggers cover every aspect of their work. This is one reason why mainstream media is losing market share to the blogs. Readers are increasingly seeking alternatives to the source of their information. That certainly comes with a risk. There are many unreliable Internet sites and there is a great deal of bias on such sites. However, if one is to define a journalist, it would seem obvious that you would base the define on what they are actually doing as opposed to the arbitrary criteria of whether anyone is paying them directly for the work.

The problem is that the mainstream media views this emerging new media as a threat and many may privately welcome the exclusion of the competition. That would leave no one to advocate for bloggers on the Hill or in the main press. For that you would have to go to Internet and the very blogs that Feinstein is targeting in this legislation.

The most effective shield under this law will be for the government in stripping claims of protection and allowing long periods of surveillance of reporters. These exceptions and Feinstein’s effort (with Durbin) make the shield law a Trojan horse bill. To paraphrase an ancient adage for civil libertarians today, beware of Democratic leaders bearing gifts.

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