September 30, 2014

Senator Lee wants to protect paid journalists, but not bloggers.

Mike Lee  United States Senator for UtahIn America, we believe in equal protection under the law.  That law includes the First Amendment and its protection of speech.

“Congress shall make no law…abridging the freedom of speech, or of the press.”

In forty-eight states, called shield laws (or a shield rule, in Utah) laws on the books protect journalists from being forced to testify against their sources.  After all, the reasoning goes, the press is an important check on governmental power, and if people are afraid of governmental retaliation, they won’t talk to the press. States, wisely then, have legislated to protect the press and limit the power of government to retaliate. The federal government, however, has never passed such a law.

Now comes Democratic Senator Dianne Feinstein of California, proposing such a law. However, her law limits a journalist to someone who has been published–recently–by a “recognized publication” or draws a salary as a journalist.

How would this work? For example, let’s say I had a conversation over lunch with a mid-level engineer who works in the Utah Office of Engineering (I don’t think there is such a thing–I made it up).  He tells me that he has seen the Chief Engineer (again, a made up position), a state-wide elected official equal to the governor or attorney general or auditor (not made up positions), take cash bribes from, let’s say, some random developer to place a TRAX station in a certain location that would benefit the developer. I check around, find some evidence of the “donation” and post it here on Publius Online. Bobert Grekhe (a totally made up name), ace reporter for the Salt Lake Tribune happens upon my blog for the first time ever and follows up on the story, publishing his own story the next day.

First off, to you lawyers out there: clearly this case has state, not federal, jurisdiction and would fall under the state shield rule. But lets say that the Trax station would be partially built on federal land…allowing the feds some jurisdiction. And they want to know who is leaking this stuff to me. The pull me into court and make me testify.  I refuse–and sit in jail for the next six months.

Meanwhile, Robert Gerhke–er, I mean, Bobert Grekhe–on the other hand, as a member of a “recognized publication” in the Salt Lake Tribune goes free, gets the Pulitzer, writes a best seller, sells the movie rights to Universal Studios, buys a small island in the South Pacific, and sends me a thank you card in Club Fed. Don’t think it happens (I mean, other than the whole buying an island part)?

In 2007, freelance journalist Josh Wolf was released after spending more than six months behind bars because he would not turn over unpublished footage of rioting in San Francisco during the Group of Eight summit meeting. Wolf’s case was moved from state court, where he had the protection of California’s shield law, to federal court — where no shield law exists — because federal money paid for some of the police cars that were burned in the riot.

Senator Lee–who I think is generally a very intelligent guy, means well, and has made a name for himself as a thorn in the side of statists and big government types–supports Feinstein’s bill, protecting “real” journalists, but not bloggers like me who, occasionally, get scoops before the professionals (and by “occasionally,” I really mean send me your scoops, wink wink, nod nod), might publish something before the “real” press, and might expose waste, corruption, or generally distasteful information about the federal government.

Brian Phillips, Lee’s spokesman, said Lee wants to see a narrowly drawn definition of a journalist, in order to prevent someone who merely dumps data on the Internet from being legally excused from testifying about it in court. He also said if Feinstein’s amendment can do that, Lee would support it.

Senators Marco Rubio and Mike Lee meet with the press on Thursday morning.

Senators Marco Rubio and Mike Lee meet with the press in a morning event during the 2012 National Republican Convention.

But what is the functional difference between Bobert Grekhe of the Salt Lake Tribune and myself? (I mean, other than talent, professionalism, and an editor to correct spelling errors and make me back up my claims with hard evidence).  The effects, really, are very similar. A “real” journalist job is to provide a story, to shine a light on government, and to inform citizens. A blogger’s job, while admittedly occasionally more sarcastic, entertaining, and, yes, biased, is to do the same thing. We may not do a print edition, but our purpose is protected under the aegis of the same law: the First Amendment and its intended purpose of keeping government accountable to the people.

Senator Lee made his brand with the United States Constitution, when he would waive his pocket copy of the document at rallies, fundraisers, and speeches during his election in 2010. I believe he was sincere and is making an effort to be a “cheerful warrior” in the cause of defending and adhering to our nation’s founding document. If he wants to equally apply the protections of “the freedom of speech, or of the press,” Lee should recognize that the meaning of press does not begin, or end, with a salary from “recognized publication,” but exists in the broad sense in every case where citizen journalism endeavors to shine a light on government.  Limiting the protections of the First Amendment–abridging them–because one isn’t paid to do one’s research, is a limit on one of the fundamentals of American freedom.

About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

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