Frank DeFilippo: Reporters Ask Impertinent Questions to Get Pertinent Answers
Journalism — that irreverent, nettlesome profession that delivers the news every day — has an identity crisis. The problem with the job description these days is that anyone with a cell phone is a photographer and everyone with a computer is a reporter.
Thus, the conundrum for federal officials trying to protect reporters from government intrusion with a shield law is one of definition and what’s in a name: Exactly what and who are journalists?
Is it the original hard-boiled egg who came up the storybook way, from copy boy to city editor — rare, these complex days, and most likely extinct? Is it the Columbia J-school graduate whose master’s degree is as much a calling card as a measure of abilities? Is it the writer and recipient of a MacArthur Genius Grant who conceived the 1619 Project for The New York Times? Now that she’s a tenured university professor, is she still a journalist?
Is it the Pulitzer Prize holder for turning out accurate, vivid prose on deadline? Is it the ferret whose paper trail is littered with the corroded carcasses of politicians who violated their public trust? Is it the young person who won an honorary Pulitzer for her cell phone video of the slow torture and death of George Floyd? Or is it the blogger, the quid nunc, if you will?
Or is it Tucker Carlson? QAnon? A partisan hack at Newsmax TV? The gossip next door? Or, even by a stretch, Donald Trump, whose thumb-driven tirades once commanded millions of followers and stirred an insurrection for which he was impeached (a second time) and banned from certain social media platforms? Yet his morning fusillades of angry Tweets often set the tone and tactic of the daily news cycle.
Anyway, you get the picture. And the problem. Everybody wants the credential and the cachet of a press card, and with it the belief that they’re privileged with immunity from ordinary rules of conduct as well as hold a universal ticket of entry to the wonderful world of journalism and freedom of the press.
To be sure, right up front, protections and access come with no guarantees. A shield law and/or a press card do not protect those who have either or both from the often rough-and-tumble world inhabited by some reporters. Journalism can often be hazardous to their health.
Neither form of acceptance has protected reporters from being tear-gassed or trampled by rioting crowds. Nor have the protections prevented news gatherers from having equipment taken or smashed. Investigative reporters have been killed for getting too close to the truth.
Reporters have spent jail time for refusing to reveal their sources. And, only recently, the Trump Administration went on a rampage to seize the phone records and emails of reporters in a subterfuge to track down leaks and leakers.
Those last points are at the heart of the struggle to present a federal shield law that will offer safeguards to reporters except in narrowly delineated cases. The last attempt to establish federal shield protections for reporters was nearly a decade ago under circumstances that eerily resemble the current revelations of devious machinations.
Most states have some form of shield protections for those who gather and dispense news. Unlike the federal government, states do not have to grapple with issues of national security.
Maryland was among the early states to adopt a shield law. Enacted in the early 1970s, the Maryland law established basic protections for reporters from revealing sources or information or any materials such as notebooks or recordings relating to sources or information.
The enactment of the Maryland shield law back then was both a response and a rebuke to the despotic era of Richard M. Nixon and kind of a mocking mirror to the autocratic one-term reign of Trump which has reprised the push for a federal shield law.
The 1960s were witness to the celebrated Times vs. Sullivan case which reinforced freedom of the press, and the Nixon years were witness to the leak and publication of the Pentagon Papers. Those times also produced Nixon’s enemies list which included the names of many journalists, a sort of parallel to Trump’s pursuit of reporters’ private records.
In the unfettered world of nearly a half century ago, the word “reporter” identified a narrow pool of people who were employed by news gathering organizations such as newspapers, news services, magazines, radio stations and commercial television stations.
Cable news networks and the Internet as we know them today did not exist. Cable service, for example, was simply a transmission service to deliver commercial and specialty TV to outlying regions where antenna signals were too weak to reach.
By the mid-to-late 1990s, bloggers began to proliferate and efforts intensified in the State House to broaden the shield law to include the new Internet hobbyists as an expansion of free speech and the introduction of advanced technology to disseminate news and other information.
The opposition argued that bloggers were not professionally trained or legitimate reporters but simply free-lance mischief-makers and should not be awarded the same legal protections as bona fide news gatherers.
The law was broadened in 2010, and again in 2014, nonetheless, to embrace the new medium of communication and to prevent “compelled disclosure” for student journalists and independent contractors: “The Maryland shield law applies to persons employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within a scope of a contractor in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholarly activity or in connection with a school-related activity.” Hence, bloggers and propaganda mongers wrapped in the guise of legitimate news dispensers.
The current attempt to establish a federal shield law is being led by Sen. Ron Wyden (D-OR), whose father was an investigative reporter. The bill carries the heavyweight title of “Protect Reporters from Excessive State Suppression Act.”
The bill defines a journalist as anyone who “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,” according to a report in The Washington Post. The bill contains exceptions in cases that involve terrorism, violence or the threat of death.
Wyden’s bill was motivated by recent revelations that Trump’s Justice Department seized phone or email records from reporters which was viewed as attempt to weaken a free press and undermine its First Amendment protections.
It’s a toothsome twist that at a time when newspapers are rapidly disappearing and their local watchdog role is being undermined by purchase, staff cuts and buyouts, that one branch of government needs to intervene to protect journalism from another branch of government.
Believe it or not, tapping a keyboard or holding a microphone can be hazardous work. No shield law can protect reporters from physical assault or verbal abuse. They come with the job. And reporters are still reporters no matter how elastic the legal definition.
Editor’s Note: This column was updated to clarify when the New York Times v. Sullivan case was decided.