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Should the Government Decide Who Is a “Legitimate” Journalist?

In mid-May, as the IRS scandal finally warranted comment from President Obama, the president gave what would become an oft-repeated and justly mocked response: he learned about it on the news. But while mainstream news publications were indeed carrying the story, the Huffington Post’s media reporter Michael Calderone noted that the national political press had picked up on the story long after conservative blogs did.

The Blaze, Calderone said, raised the prospect that pushy and prying IRS agents seemed to be targeting conservative groups—in early 2012, more than a year before Obama was enlightened by the press. Two weeks after the Blaze report, Colleen Owens blogged about the letters the IRS office in Cincinnati was sending Tea Party groups, and she followed up with more reporting on the issue. Calderone’s explanation of Owens’s work is significant in light of a recent legislative push by Democratic Senator Dick Durbin. First, Calderone’s description of Owens:

Owens, a stay-at-home mom with no professional journalism experience, told The Huffington Post that she was especially interested in the 2012 IRS letters because of a couple previous instances in which she felt tea party activists were unfairly targeted. She said the IRS sent a similar list of demands in 2011 to organizers of the Virginia Tea Party Convention. Richmond Tea Party, Owens’ local chapter at the time, was audited by the city that same year.

Following the Richmond city audit, Owens asked Jeff Bayard, a friend and the publisher of Right Side News, if she could submit an article on behalf of the Richmond Tea Party. That story, published in Nov. 2011, got picked up by The Drudge Report, and Owens did a couple Fox News interviews.

When learning a few months later about tea party groups receiving IRS letters, Owens said she “started immediately researching, knowing this sounded like a huge story.” She went back to Bayard — on her own, not on behalf of a specific tea party group — and Right Side News published her second story, which included PDFs of letters that groups had received.

“I’m really just an amateur that wanted to write about stories that I thought were big stories,” Owens said, adding that she “just felt like, as a citizen, this was an important story.”

Keep those phrases in mind—Calderone’s description of Owens as a “stay-at-home mom with no professional journalism experience,” and Owens’s contention that she is “really just an amateur that wanted to write about stories that I thought were big stories”—as you read through Dick Durban’s op-ed in the Chicago Sun-Times about a federal shield law.

The law would carve out specific protections for journalists to be exempted from having to divulge their sources. Reporters, especially those who cover national politics, would struggle to do their jobs if they couldn’t publish information provided to them anonymously. The concern is that if journalists couldn’t protect their sources, there would be a “chilling effect” on the public’s access to information, especially in cases when the source could be fired or prosecuted (or both) for divulging the information.

Most states already have such shield laws on the books, but Durbin wants a federal law. The problem is that in order to produce this law, the federal government would have to legally define who is a journalist, and who isn’t. And there would almost certainly be a national-security exception to the law (what’s often referred to legislatively as a “compelling public interest”), so the bill wouldn’t change much in practice. That means the federal shield law would really only serve to exclude from existing protections those Durbin and his colleagues don’t consider real journalists.

And that’s not an exaggeration, either. The headline of Durbin’s column is “Sen. Dick Durbin: It’s time to say who’s a real reporter.” It should be noted that the national-security exemptions are not without their merit, either. Even in this age of disclosure and transparency we should remember that there are plenty of secrets that benefit the public only by remaining secret. The government may be in the habit of over-classifying information, but that is not universally true.

Durbin asks: “But who should be considered to be a journalist?” He then seeks to answer his own question:

A journalist gathers information for a media outlet that disseminates the information through a broadly defined “medium” — including newspaper, nonfiction book, wire service, magazine, news website, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.

Take a look at that definition, and try to guess whether someone like Owens would qualify. But as Calderone noted, Owens was the one reporting on the IRS story before those Durbin would consider “real journalists.” What if Owens found herself seeking to protect a source? This isn’t just about the occasional conservative blogger, either—though Durbin’s criteria would obviously benefit the largely liberal mainstream press. Last year the Romney presidential campaign sought to exclude BuzzFeed, a website that was at the time relatively new to political reporting, from the campaign’s press pool.

Calderone reported on this controversy as well, and pointed out that the journalists covering the campaign were uncomfortable with the politician, instead of the political press, determining who qualifies as a legitimate news source. A Romney spokeswoman told Calderone: “We do not have a separate blogger pool report.” Calderone continued:

Saul’s comment suggests the campaign may consider BuzzFeed a blog and, for that reason, not eligible to be in the print pool. While BuzzFeed reporters write exclusively online, so do others in the “print” pool, such as The Huffington Post and Yahoo! News. Also, newspaper reporters routinely file dispatches from the trail that only appear online.

It’s not so simple, in other words, to draw that line. And politicians don’t appear to be the best qualified to make that decision. They are often less informed on the changing digital media landscape than news consumers, and they have an obvious interest in excluding some journalists or news outlets from press protections.

Again, that doesn’t mean journalists should always be exempted from the laws that their fellow citizens are held to. And there is no doubt that cases of “compelling public interest” are not automatically a figment of Big Brother’s imagination; they exist. But in a country with robust free-press protections enshrined in the Constitution, asking the United States Senate to narrow those protections seems like a recipe for trouble.


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