Who is a journalist? What rules should protect reporters from excessive government efforts to track down their sources of information and compel their testimony in legal proceedings?
Those questions have taken center stage in Washington. They started emerging in May, with revelations that the Obama administration secretly sought the phone records of Associated Press reporters who had broken a story about a terrorist conspiracy in Yemen. The Justice Department even accused a Fox reporter of being a criminal “co-conspirator” in the release of classified information about North Korea’s nuclear program.
Then came the blowback. Politicians from both parties denounced such heavy-handed tactics, and the administration retreated. The president gave a speech saying, “I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.” Attorney General Eric Holder conceded to NBC that “things have gotten a little out of whack” and no reporter should fear being “branded a criminal” for simply doing her or his job. “I’m just not comfortable with that, we’re going to change that,” he vowed.
Holder’s changes in Justice Department guidelines are due July 12, and the president has endorsed legislation to create a “media shield law” that would codify on a federal level some of the safeguards journalists already enjoy in 49 states. So the time is ripe for a national debate.
But the questions are easier to ask than to answer.
Many years ago, we both served on panels of journalists that vetted applications for press credentials to cover Congress. The essential qualification really was: Do you work for a recognized news organization?
That standard has long been obsolete. In the age of Twitter and Instagram, almost anyone with a cellphone or a laptop can be a generator of information. You don’t have to work for anybody but yourself. That’s a healthy development, but it poses a huge problem. If the Attorney General and Congress are revising rules that apply to legitimate journalists — but not to everyone with a Facebook account — then a line has to be drawn somewhere. A new definition of legitimacy has to be crafted.
And technology is not the only complicating factor. Journalism by its very nature prizes professionalism and independence. But many “citizen journalists” are also activists, advocates for a cause or ideology. As journalism professor Jay Rosen of NYU told David Carr of The New York Times: “We are beginning to realize that journalists come in a variety of shapes and sizes and come with a variety of commitments.” True. But it’s also true, as Carr notes, that a devout commitment to a point of view can “impair vision” and distort accuracy. “Tendentiousness of ideology creates its own narrative,” he says, and at some point, that tendentiousness clashes with the fundamental precepts of fair-minded journalism. Everyone is entitled to free speech. But journalists are entitled to an extra dimension of immunity from government intrusion only because they adhere to certain values and play such a vital role in holding the government accountable, as the president said.
Sen. Dick Durbin of Illinois, a prime sponsor of a federal shield law, made this point recently in the Chicago Sun-Times: “While social media allows tens of millions of people to share information publicly, it does not entitle them to special legal protections to ignore requests for documents or information from grand juries, judges or other law enforcement personnel.”
If a new definition of “journalist” can be formulated — a big “if” — the second question is the exact nature of the “special legal protections” for which reporters should qualify. As Holder admits, the balance is now “out of whack” and tilts too heavily toward governmental power and away from reportorial independence. The new guidelines he is working on — and any shield law passed by Congress — should redress that imbalance and fortify the ability of journalists to resist the probes and pressures that have become all too common in the current administration.
Rules, however, are interpreted by real people in the real world. Spirit counts as much as specifics. The over-zealous prosecutors in his own administration have to heed the president’s words: “Journalists should not be at legal risk for doing their jobs.”
And journalists have to understand that with rights come responsibilities. Immunity from “legal risk” should not breed ignorance or arrogance. No privileges are absolute, and all journalists are also citizens who must take the requirements of national security and law enforcement very seriously. “Special protections” are sustainable only if they are exercised wisely and modestly.
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Steve and Cokie Roberts can be contacted by email at email@example.com.