Recently, Mr. Rehberg wrote newspapers across Montana to voice his support for HR2102, the so-called “Free Flow of Information Act” (called by some the “Reporter Confidentiality Act of 2007”). Anyone who watches Washington regularly knows enough to know that the bill names usually are just the opposite of reality, and this one is no different.
Rehberg’s letter noted that “the legislation would establish a set of criteria which must be met before a journalist is required to disclose their source in federal cases. This will ensure our nation’s media outlets can continue to provide news that is both informative and accurate without compromising our national security.”
That sounds wonderful, doesn’t it? What Rehberg conveniently neglected to mention is that the law only applies to a strict definition of “journalist”, defined by this proposed law as someone who makes a “substantial portion of their…livelihood” from their writing, recording, video, etc.
While HR2102 might be perceived as an important step for those who do make the majority of their income via the news business, this group already benefits from both protection via the First Amendment to the Constitution, plus several Supreme Court rulings which note the only exception: Federal grand juries (a ruling used only 19 times in 30+ years: Branzburg v. Hayes, 1972). Clearly, the courts only use the grand jury ruling when necessary and thus appear to recognize the freedom of the press, as promised to the people of this country in the First Amendment to the U.S. Constitution. I won’t argue that coercion against reporters isn’t on the rise. Yet this bill fails to fully protect the group it claims to, and in fact, specifically identifies (by omission) groups who can be coerced and persecuted.
What the law ignores is the real-world makeup of today’s media, which includes a substantial number of independent journalists, freelance writers and bloggers (yes, I fall into all three groups), among others.
One blogger was jailed in Federal prison for seven months for not revealing a source (Josh Wolf, www.joshwolf.net).
As written, this law would not protect most bloggers, nor most independent journalists – the same people who report news that big corporate media won’t tell you. Some claim that this law was put into place to put the deep freeze on independent news outlets (like the Beacon, HHN, etc) and bloggers for the benefit of corporate media. Judging from the vast support for the law in the media industry, it’s hard not to wonder. Whether you’re left (a Daily Koz reader) or right (a Drudge reader), your alternative sources of information and news are threatened by this bill because it threatens those who publish that information.
But that’s not why I write this today.
HR2102 is a direct shot across the bow of bloggers, freelance writers, journalism students, independent recording artists, independent videographers, podcasters and others who are more likely than most to say things that our friends in Washington don’t want said. In fact, the DOJ and Homeland Security tried to load this law down with a litany of exceptions. Most of these attempts failed, although the law does now read that you immediately stop becoming a “covered person” if the Feds officially declare you a terrorist. Like that’s hard for Washington to do.
Don’t fall for the illusion that the title of “terrorist” is just for people who blow up buildings and hijack planes. These days, you can be treated as if you were a terrorist simply for carrying a suspicious tippy cup in an airport.
Freelance writers, bloggers, podcasters and the like RARELY make a “substantial portion” of their livelihood directly from their writing. Nice, well-behaved, proper and “patriotic” (read: obedient and/or subservient) bloggers and freelancers obviously won’t be affected by this DOJ-friendly proposed law.
To be considered a “journalist” and thus covered by the law (what Washington calls a “covered person”), you must fall into this definition (directly from the House-approved law, available at
http://thomas.loc.gov/home/c110query.html (use HR 2102 to search, don’t take the space out between HR and 2102). You can also see more details of the amendment process and testimony at http://www.fas.org/sgp/congress/2007/freeflow.html.
The applicable text of this law says that the definition of a journalist is: “COVERED PERSON- The term `covered person’ means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.”
What really concerns me is this: If HR2102 is placed between the people and the First Amendment, it places the public clearly in the crosshairs of the whims of Congress, giving them the power to regulate freedom of speech and freedom of the press without the “hassle” of that troublesome old Constitution that every member of Congress is supposed to be defending per their oath. Putting that into play is worse than what we have now, and it sets a dangerous precedent.
Sorry Mr. Rehberg, the existing First Amendment works just fine, thank you very much.
At present, the bill sits as passed by the House and has been placed on the Senate calendar for further action.