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The Media Censorship The Internet United States

Federal Journalist Shield Law Advances 79

Posted by kdawson
from the little-bird-told-me dept.
A journal entry by twitter alerts us that the US Free Flow of Information Act cleared the House Judiciary Committee last week. It is designed as a shield for the confidential sources of journalists, and the bill's sponsors intend that the definition of "journalist" be broad enough to encompass at least some bloggers. The language voted out of the Judiciary Committee stipulates that protections apply only to those who derive "financial gain or livelihood from the journalistic activity" — this could cover anybody with a blog and an AdWords account, and this worries some opponents. The Register's coverage notes "several exceptions regarding terrorism, national security, imminent death and trade secret leaks." If this act becomes law, it would override all state shield laws, some of which may now provide stronger protections. The bill seems unlikely to go anywhere any time soon as its counterpart in the Senate has received no attention, and in its present form it would likely be opposed by the Bush administration.
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Federal Journalist Shield Law Advances

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  • by dosboot (973832) on Wednesday August 08, 2007 @08:24AM (#20154805)
    Either the government doesn't have the right to force you to divulge something or they do. Who I am should make no difference. The casual blogger vs non casual blogger distinction is stupid.
    • by nomadic (141991)
      Either the government doesn't have the right to force you to divulge something or they do.

      Well, under our laws they do. If you have material knowledge of a crime, the government can force you to divulge it (unless by doing so you would incriminate yourself). This is making a narrow exception for the press.
      • unless by doing so you would incriminate yourself
        or a Spouse - or certain circumstances where you have privileged information (Attorney Client, Doctor Patient, Confessional)
    • In an ideal world, where everyone is shaped like platonic solids and everything happens perfectly, instantaneously, without heat or friction... maybe.

      In fact, the government doesn't have any rights. People have rights which we create governments to protect. In the real world in which I live, sometimes those rights conflict with each other. We have to look at the real effects of the tradeoffs between the limits on protecting and exercising some of these rights. The Constitution is not a suicide pact [wikipedia.org].

      While th
      • We have to look at the real effects of the tradeoffs between the limits on protecting and exercising some of these rights. The Constitution is not a suicide pact.
        I'm guessing this latest gem is the long awaited update to the "Just a God damned Piece of Paper" argument.
        • by Doc Ruby (173196)
          If you read the link [wikipedia.org] I posted, you'd see that "not a suicide pact" is a gem practically old as the Constituion, first attributed to Jefferson himself, and revisited periodically as the US government is in crisis.

          "Just a goddamn piece of paper" is probably at least as old.

          But neither of them are justification to ignore the Constitution, as I explained in detail.
      • "there is no express grant of habeas in the Constitution. There is a prohibition against taking it away."
        -- Alberto Gonzales, US Attorney General
    • by hpavc (129350)
      This is just to help protect their leakers and punish to leakers that aren't theirs if they have found to stumbled poorly. They want to be able to maintain a outward pipeline of sensitive information to key people every day, but want to be able to punish people that obtain information that is not good.
    • Re: (Score:3, Interesting)

      by starX (306011)
      Let me explain it then, the nebulous entity known as "the press" is traditionally regarded as necessary to the function of a free society. Without someone to report on the actions of elected officials, said officials would be free to act with utter impunity. An active press keeps the public informed about the actions of their elected officials, and thus (so the theory goes) those officials can be held accountable by the people whom they are elected to represent. However the press needs special protections i
      • by Keebler71 (520908)
        I think you are confusing freedom of the press (i.e. to print anything without legal consequence) with freedom to protect sources (i.e. to not divulge the sources behind your stories). One of these is clearly in the Constitution. The other isn't.
        • How do you figure? He doesn't say that the right to protect sources is in the Constitution (hence the need for this law), he only makes the case that this right is beneficial to a democratic nation.
  • Override? (Score:4, Insightful)

    by bkr1_2k (237627) on Wednesday August 08, 2007 @08:24AM (#20154807)
    Since when do federal laws that have lower standards override higher standards at the state level? That's like saying that the federal drinking age (in the 80s) of 18 made it mandatory for all states to comply with 18 instead of 21. That's not the case.
    • Since when do federal laws that have lower standards override higher standards at the state level? That's like saying that the federal drinking age (in the 80s) of 18 made it mandatory for all states to comply with 18 instead of 21. That's not the case.

      Actually, the Minimum Drinking Age Act of 1984 [potsdam.edu] set the minimum age to purchase alcohol and possess it in public to be 21. It did not require states to ban alcohol consumption by persons under the age of 21.

      Federal law often overrides state law by forcing sta

      • by Nitack (1046362)

        This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

        It is not compelling states to follow Federal Law through funding withholding. States are constitutionally bound to adhere to federal law. It is part

        • Funding is withheld when the feds want the states to do something but the actual topic is something that the constitution specifically delineates the jurisdiction to the states.

          Boy, you got the Reserved Power Clause [wikipedia.org] exactly backwards: it states that if a power is not specifically given to the Feds, then it falls to the states which is, of course, subsequent to the Implied Powers Clause [wikipedia.org] which basically says that citizens should not be deemed to forfeit rights not specifically enumerated.
        • by vertinox (846076)
          It is not compelling states to follow Federal Law through funding withholding. States are constitutionally bound to adhere to federal law. It is part of the deal for a state to join the union, they are required to relinquish powers to the federal government.

          Where in the (current) constitution does it give the Federal Government power to regulate drinking age laws? It was added in at one time but then revoked.

          Congress has the right to control interstate commerce and funding for said projects, but it has no a
          • by Nitack (1046362)
            Perhaps you did not read the excerpt from the constitution, I will repost the first line for you.

            This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

            • Re: (Score:3, Informative)

              by vertinox (846076)
              True but congress has limited power so I'll refresh your memory on their current powers:

              Article 1 Section 8: The Congress shall have power

              to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

              To borrow money on the credit of the United States;

              To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

              To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

              To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

              To provide for the punishment of counterfeiting the securities and current coin of the United States;

              To establish post offices and post roads;

              To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

              To constitute tribunals inferior to the Supreme Court;

              To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

              To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

              To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

              To provide and maintain a navy;

              To make rules for the government and regulation of the land and naval forces;

              To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

              To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

              To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

              To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

              You can make laws to expand on those powers, but if it is not listed then you have to make an amendment to the constitution. Those include making states respect the rights of all citizens right to vote and trial by jury regardless of race, voting at 18, and at one time to outlaw alcohol which was later repealed.

              If you could find me a part of the constitution and amendments that grants the federal government the right to

              • by Nitack (1046362)
                Well this is a case of the feds using denying funding if the states don't go along.

                Financial incentives create de facto federal purchase age of 21. The National Minimum Drinking Age Act of 1984 states that revenue will be withheld from states that allow the purchase of alcohol to anyone under the age of 21. Some states do not allow those under the legal drinking age to be present in liquor stores or in bars (usually, the difference between a bar and a restaurant is whether food is being served). Contrary

      • by bkr1_2k (237627)
        Yes federal government extortion is definitely a precedent, but that's not the same thing as overriding the law. I wasn't aware about the whole consumption versus purchase for the drinking age but thanks for educating me.

        I will note, however that in most cases where the federal government extorts the states the feds are trying to enforce stricter standards, not lower standards.
      • Yeah like if a state does not comply they withhold money for fixing highways and bridges.... oh wait never mind....
    • Since when do federal laws that have lower standards override higher standards at the state level?


      Does Can-Spam ring a bell? How about a national Do Not Call list?

      There are many federal laws on the books which override stronger state laws.

    • by Nitack (1046362)
      Federal laws trump State laws. There are cases, such as your drinking example, where states are able to set higher standards, but never lower. This is not an apples to apples comparison though. This law is not about a minimum age or a maximum speed limit. This is defining who is protected and who is not. In this case the feds are delineating the standard of what constitutes a journalist protected by these shield laws. In this case, you can't meet both the federal standard, which is journalist or not,
      • by bkr1_2k (237627)
        I'll dare to say that extending the coverage to extra forms of "professions" is a degree rather than a simple "yes or no" unless the federal law specifically excludes people. By leaving the "financial gain" vague (if in fact it does) it leaves plenty of room for states to interpret that as they will.
    • by Dausha (546002)
      "Since when do federal laws that have lower standards override higher standards at the state level?"

      Reading the bill, it appears to apply to federal issues, not state issues.[1] So in this case, federal laws "override" which it involves federal issues. If this were a matter of field preemption, then Congress can do whatever it wants. Get sued in state court, Herr Blogger, and this bill seems to offer no support. You'll need the state law.

      [1]: "In any proceeding or in connection with any issue arising under
    • by nomadic (141991)
      Since when do federal laws that have lower standards override higher standards at the state level?

      It's the doctrine of Federal preemption, and it's been around for a while. Here's [umkc.edu] a good explanation.
    • by Politburo (640618)
      Basically, when the laws say so. It isn't always the case. For instance, states are free to enact environmental standards above the federal minimums. A failed bill from a few years ago would have prevented the states from regulating CO2.
    • by Anonymous Coward
      As a general rule of thumb, Federal law does not trump state law. In point of fact, the basic assumption in constitutional law is that the feds *cannot* legislate any given activity. It's just plain off limits unless there's a particular constituational authorization for federalization.

      In practise, modern constituational theory provides a large number of hooks to federalize legislation. Among the most common are:

      Interstate commerce -- if an activity is economic, and it crosses state li
    • Laws passed by Congress under the authority of the Constitution ALWAYS override state laws. See Article 6, Paragraph 2 of the Constitution of the United States, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwit
  • by Anonymous Coward on Wednesday August 08, 2007 @08:25AM (#20154813)
    Letting our government define who are and aren't journalists is really dangerous.
  • by Joebert (946227)
    This is just to make bloggers feel comfortable, some other law will make it legal to get sources from transmissions or somthing.

    Laws like this never go anywhere unless they already have blueprints for a back door.
  • by delirium of disorder (701392) on Wednesday August 08, 2007 @08:31AM (#20154851) Homepage Journal
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech*, or of the press*; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

    *Except regarding terrorism, national security**, imminent death and trade secret leaks.

    **"National security" never means the safety of the people living in a nation. If it did, perusing national security would mean working for a sustainable economy, a non-agressive (defensive only) military policy, or perhaps health care and highway safety. "National security" must actually mean something like, "actions taken to further enrich the military industrial complex" or "the right to invade other nations to control their resources".
    • Re: (Score:2, Insightful)

      by Canthros (5769)
      What has this to do with a federal shield law?
    • Re: (Score:3, Insightful)

      If someone tells me that they are going to kill another person and then goes and kills that person, why should the fact that I am a journalist make a difference in whether or not the courts/police can compel me to tell them who it is? What if the person who told me, also told me they were going to kill someone else?
      • If someone tells me that they are going to kill another person and then goes and kills that person, why should the fact that I am a journalist make a difference in whether or not the courts/police can compel me to tell them who it is? What if the person who told me, also told me they were going to kill someone else?

        I think the difference in your example is that you would have knowledge of a specific crime being committed. In most cases, it's not a crime (yet) to leak information about the government. If a journalist was told by an anonymous source that some politician murdered someone (in the usual legal definition of the word, not the he-started-a-war definition), it wouldn't be that unreasonable for a court to compel testimony from the journalist about what they know.

        • I intentionally took an exaggerated example, because there are people who would say that a journalist should not be compelled in the example I gave and I have no interest in what those people have to say. That being said the first question is: Where do you draw the line? The second question is: why are journalists a special case? What makes a "journalist" different than anybody else (in the eyes of the law)? In my opinion, either the law should not compel anyone to reveal where they learned what they know a
    • Re: (Score:3, Informative)

      by Politburo (640618)
      Yeah, you midded a lot. Specifically, the idea that the 1st amendment is not absolute, which has been around since the beginning of the nation with the Alien and Sedition acts.

      Not saying I agree, but to just paste the 1st amendment and say 'wtf?' is the height of naivety.
  • FTFA: Boucher's amendment also specified that "foreign powers or agents of foreign powers"--including a government-controlled newspaper--and any "foreign terrorist organization" designated by the Secretary of State cannot receive the protections.

    Now, I realize that they're aiming at, let's say, a newspaper owned by the Chinese Government, but I have this sinking feeling that it will be applied to some paper like the "Wall Street Journal" since it is now controlled by an Australian. I just see some Attorney

    • by slobarnuts (666254) on Wednesday August 08, 2007 @08:37AM (#20154893) Homepage
      Rupert Murdoch took US citizenship so he could own a US TV network. There goes your theory.
      • Rupert Murdoch took US citizenship so he could own a US TV network. There goes your theory.

        Did he renounce his Australian Citizenship?

        What about the Financial Times? What if they break a story that the Government doesn't like? Or what about the zillions of websites and other papers, magazines, and whatnot that are owned by a foreign businesses.

        OK, I was ignorant about the citizenship of Murdoch, but still doesn't invalidate my point. You need to look at the big picture.

    • by Politburo (640618)
      Your nickname is appropriate. The terms 'foreign power', 'agents of foreign powers' and 'foreign terrorist organization' are well defined in US law. The amendment closes a possible loophole.
  • For the press to be free, the confidentiality of a journalist contact should be protected. While this power can be abused (as can all laws), it helps to protect both liberals and conservatives from destroying each other. Informants have also helped to bring to light serious ecological, financial and other offenses. For good or bad, this is a right that needs to be protected, because I fear the resulting effects of the lack of protection.
  • by Jason Levine (196982) on Wednesday August 08, 2007 @09:05AM (#20155189)
    Apparently, revealing the secret recipe for KFC chicken is on the same level as plotting to blow up buildings and/or kill people.
  • by Doc Ruby (173196) on Wednesday August 08, 2007 @09:10AM (#20155247) Homepage Journal
    The only criterion for who to protect as a "journalist" is whoever publishes. The only reason for the exception to the secrecy rules is because informing the public is more important than letting some arbitrary group of private people (a "conspiracy") talk about the secrets after they've escaped actual secrecy control. Therefore, no one who publishes the old secret is any more privileged than any other. No matter how much money their publishing corporation paid any politician, no matter who went to law school with whom.

    This principle of protecting the publisher without any preference among them is essential to the open source movement. The 60-70 year old Baby Boomers running our government have finally started to catch up with current American culture and wisdom. But they need to drop the obsolete old boy protections for "journalists" with whom they have all kinds of "off the record" deals to protect their own secrets from informing the public, including the bribes that corporate mass media pay to keep both their sides of the secrecy rules in business.
    • But they need to drop the obsolete old boy protections for "journalists" with whom they have all kinds of "off the record" deals to protect their own secrets from informing the public, including the bribes that corporate mass media pay to keep both their sides of the secrecy rules in business.

      Basically that's it. Journalists are treated as a privileged class in our society. I had a rant recently [slashdot.org] about how the media has taken up the baton of the second estate from an outdated clergy. They've become a secula

  • A huge swath of the stories written by business journalists, in general, and tech journalists, in particular, involve publishing news about companies and their plans *before* those companies are ready to divulge the news themselves. I'd want to know how (or if) this law will distinguish between a leak to a journalist about the next version of the iPhone and, say, the secret formula for Coca-Cola? Will journalists be able to protect sources who in the process of providing information about an upcoming produc
  • 'Financial gain'? (Score:2, Interesting)

    by vigmeister (1112659)
    Wait a second... does this mean that people who contribute to WikiNews [wikinews.org] aren't considered journalists, but mudslinging bloggers who have adwords accounts are?

    I call BS on this regulation. Maybe journalists ought to be defined by a certification course on journalistic ethics similar to CITI [citiprogram.org] for researchers?

    Cheers!
  • the other view (Score:2, Interesting)

    by gryf (121168)
    As a libertarian I ought to celebrate a law that protects journalists. Unfortunately, at this time, protecting journalists and their sources sounds a lot like protecting Enron. Left or right, we've all been upset about the state of journalism, yet one thing we've not been short of is anonymous source.

    Only 15% of americans truly trust the news providers [cbsnews.com], and since just about any story you find in the paper or hear on tv requires us trusting the reporter, and their anonymous sources, it doesn't make sense

    • by gknoy (899301)

      I want it harder for anonymous sources to come forward. If a source has an issue with this or that policy, they should prove the strength of their conviction by allowing themselves to be named instead of hiding in the shadows. Too often journalists end up as tools for agency or bureaucratic agendas and vendettas.

      I was going to mod your post up (Interesting DOES apply), but thought I'd address this.

      When a person feels that their life (or family) would be in danger if they are a known source, they are going t

      • by gryf (121168)
        I think that the case in abstract is a useful one. In practice though we've seen many governments' horrific practices brought to light. Think the of the killing fields of Cambodia, the gassing of the Kurds, the massacre of the Armenians. Or, somewhat more trenchantly, the genocide against Africans in Darfur. These cases all came to light because sources informed the media or others who went and reported on it themselves. They didn't rely on anonymous sources, they got hard copy first hand to relate the stor
  • Anonymous Cowards (Score:3, Insightful)

    by An Onerous Coward (222037) on Wednesday August 08, 2007 @09:56AM (#20155939) Homepage
    Well, the Bush administration is against the bill, so I suppose I ought to be for it.

    I think journalists often use anonymity irresponsibly. It's not just used for whistleblowers exposing shady dealings and national conspiracies. It's also used to hide legitimate conflicts of interest from public view. In the run-up to the Iraq war,

    Does anyone remember that time when a source on the Iraq war, who demanded that he only be referred to as a "senior administration official", came across as a bit of a Dick [salon.com]?

    Anonymity shouldn't be used for trivial reasons [salon.com], and it shouldn't be used to give those in power a soapbox for publishing self-serving disinformation. Hint: if you're interviewing an administration official who thinks the president is about to rush us into a disastrous war, anonymity might be right for you. If you're interviewing an official who wants to use anonymity to make his pro-war opinions sound like they're coming from a more legitimate and objective source than, well, him... the American people deserve to know how credible the source is.

    The law itself is probably a good idea, but journalists have lately been willing to grant anonymity to clearly undeserving sources.
    • by dosboot (973832)
      Anonymous sources that are never revealed might as well be fictional. If the source won't reveal himself then I have no reason to believe he even exists. The absence of a shield law does not prevent reporters from bringing us important information, it only forces them to divulge the source in certain circumstances.
    • by aztektum (170569)
      I'm typically against any bill any legislative body tries to pass these days. But I'm ESPECIALLY against a bill that defines who is allowed what protections.

      There was an argument over including a "Bill of Rights" in our Constitution over the same principle. If you enumerate only certain rights, you run the risk that it inherently denies others. I haven't read this bill, but by stipulating who is allowed protection you reduce the rights of others. That goes against the very principles our country was designe
      • by nuzak (959558)
        > There was an argument over including a "Bill of Rights" in our Constitution over the same principle. If you enumerate only certain rights, you run the risk that it inherently denies others.

        Thus was there a ninth amendment -- I doubt this bill would run afoul it though, since it isn't really proscriptive of selective regulation, it serves only to pre-empt the validity of the assumption you mentioned. The Ninth amendment is sometimes used to support the implicit notion of privacy in the constitution, su
  • Legitimacy... (Score:3, Insightful)

    by Notquitecajun (1073646) on Wednesday August 08, 2007 @11:47AM (#20157489)
    Hopefully, this adds a little bit of legitimacy to people who actually know something of what they're writing about. The inherent problem with journalism is a journalism degree - you may be able to write a nice-sounding story, but what do you know about things like engineering, biology, history, police work, law, or anything on what is being written about?
  • what if this were applied to OSS?

    Or in other words does this undermine free speech, as in beer....?
  • I guess this means the courts can't harass the authors of "Game of Shadows" about their sources anymore, and the irrational juggernaut of Congressional attention focused on Barry Bonds can ease up and take a more general, blanketed approach to cracking the steroids scandal. This instead of wasting precious money and time focusing on nailing a single athlete just because he's the home run king.
  • "it would override all state shield laws"
    Federal law,policy,or wishful thinking will never override state law.
    The Feds only job is to protect borders,run a post office,regulate interstate commerce and sundry other things.State Law is the final word.
    Anything beyond this is cooperation on the states part or just a mistake that no-one noticed to point out.
    Put the Fed in their place.An untrustworthy servant with simple tasks as intended,not an authority that so many readily believe it to be.The more who believe
  • ...who thinks this who "obstruction of justice" business is completely unconstitutional? If I have freedom of speech, then I am also free to decide what I say or don't say (with a few exceptions related to making threats or putting others in imminent danger). So why is it even remotely okay for the government to make me say something (e.g. naming a source, testifying, etc). If I don't want to speak, I don't have to speak. My right to silence trumps the government's desire to catch bad guys. This right
    • I should clarify that I'm using "obstruction of justice" to mean any punishment for refusing to speak, including contempt of court or congress.

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