STIGMERGY: The C4SS Blog
Missing Comma: “Pass It! Consequences Be Damned!”

The Daily Beast’s Geoffrey Stone has drawn the line in the sand when it comes to the Free Flow of Information Act. He has made it clear which side he’s on. He believes that the only way journalism can continue to be free in the United States of got-dang America is if journalists have the same sort of client privilege afforded doctors and lawyers. If sources don’t feel safe to speak to the media, we are on a railcar headed to hell.

That’s why, he says, Congress should pass the Free Flow of Information Act, warts and all. As is. Right now.

Wait. What?

From Stone’s article (4/15/14):

[T]he law is full of hard choices, and what matters here is not that every tomdickandharry self-professed “journalist” gets to assert the privilege, but that sources can reasonably find journalists who can invoke the privilege when they want anonymity. It is no doubt true that, no matter how one draws the line, some folks will be unhappy. But as long as the statutory definition of “journalist” is reasonable, and is not couched in such a way to exclude journalists because of their particular ideological slant, this is not a serious obstacle. Indeed, if 49 states have managed to make this work, so can the federal government.

Sorry, no. The constitutionalist devil on my left shoulder can’t abide the first amendment-eviscerating clauses added by Dianne Feinstein in the current version of the act; the anarchist on my right shoulder obviously wants to see the act lit on fire, with all digital copies wiped as a precaution. As I wrote in my April 1 op-ed, more than just bloggers would be adversely affected by the shield law’s exclusions:

But what if the reporter in question doesn’t work for a newspaper, television station, radio station or wire service? What if they got a job at Wikileaks?

“The term ‘covered journalist’ does not include any person or entity whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.”

So that means that independent investigative journalists who run their own sites and leak sites like Wikileaks and Cryptome aren’t covered. See also: Targets of state-level “Ag-Gag” laws, which criminalize the filming of factory farm conditions and other agricultural atrocities, and people who film the police.

In fact, the Free Flow of Information Act spends more time detailing what it will not cover than describing who it will protect.

Now, granted, Stone was writing in response to arguments by an ex-Romney staffer, Gabriel Schoenfeld, whose article, “Time for a Shield Law?” was published in the spring 2014 issue of National Affairs. From the quotey bits in Stone’s piece (not to mention an admittedly merely-cursory glance at the source), I don’t know if I could defend the premises of Schoenfeld’s article either. Conservative statism is just as bad as, if not worse than, liberal statism.

But Stone’s piece is still statist apologetics, and needs to be called out as such. So let’s go through the article.

After defining what journalist-source privilege is, and comparing it to the confidentiality agreements afforded doctors or lawyers, he describes a scenario where a congressional aide overhears a bribe taking place. This aide turns to a journalist, who assures them that their identity will not get out: “Without the privilege, the story would never have seen the light of day, but with the privilege the story gets out and the source remains anonymous.”

However, if the congressperson caught taking the bribe is prosecuted in federal court, the journalist is compelled to reveal their source, who is then compelled to testify. “Knowing this, the source in many instances will tell no one about what she overheard, and there will therefore be no investigation or prosecution for the bribe,” Stone writes.

This is definitely not good, but so far, this is simply an argument for a shield law, not the current shield bill being debated. In fact, this scenario presents the main stumbling block: why in the world is Congress going to pass a law that makes it easier for someone to incriminate them and get away scot-free?

Through their definition of who gets to be a journalist, they’re not. They are making sure that the outlets that crave the most access – the major networks, public radio, major newspapers – are the only ones covered; everyone else can suck eggs – especially Wikileaks, or organizations like it.

Stone is fine with this, as the above-quoted section of his article indicates. He’s okay with “compromise.” I’m not.

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