Congressional shield-law debate risks consigning student journalists to second-class legal status

There is exuberance — cautious exuberance, to be sure, among those who’ve been to the threshold too many times — that, as a byproduct of the Obama administration’s shameful mistreatment of journalists, Congress will soon enact a reporter’s privilege that protects journalists against demands to disclose their confidences.

Largely lost in that exuberance is the vast distinction between competing versions of the “Free Flow of Information Act of 2013” in the House and Senate — a distinction that could literally mean the difference between prison and freedom for student journalists.

The reporter’s privilege (or “reporter shield”) enables a journalist to refuse to give testimony or surrender unpublished information in connection with a police investigation or legal proceeding. Despite decades of near-misses, Congress has failed to enact a privilege statute, and the U.S. Supreme Court has equivocated over whether a privilege is implicit in the First Amendment, leaving journalists exposed to pressure tactics by federal law enforcement and prosecutors.

The pivotal question is, who will the law recognize as a “journalist” entitled to claim the privilege?

Senate Bill 987, by Sens. Charles Schumer (D-N.Y.) and Lindsay Graham (R-S.C.), broadly defines “journalist” as a person who gathers information with the primary purpose of distributing it to a public audience through a mass communications medium. This is a functional standard based on intent, not employment status, consistent with the majority of state privilege laws.

House Resolution 1962, by Reps. Ted Poe (R-Tex.) and John Conyers (D-Mich.), defines “journalist” narrowly as a person who gathers and distributes news “for financial gain or livelihood.” This is the view of a small minority of states — Delaware, Florida, Indiana, Louisiana, Nevada, New York and Texas — where only paid professionals are regarded as worthy of legal recognition.

That excludes the vast majority of students journalists, including those working for academic credit in campus-based nonprofit journalism labs like News21, which has published groundbreaking stories about food contamination and highway safety comparable to the work of experienced professionals in every way except compensation.

The congressional divide mirrors the intractable “who’s a journalist” argument that, earlier this year, scuttled the renewal of Hawaii’s reporter shield, leaving that state and Wyoming as the only two without a legally recognized privilege.

As so often is the case, the welfare of students is almost entirely absent in the debate. Students are unseen “collateral damage,” as members of Congress seek to craft a definition of “journalist” that will exclude the mythologized “pajama blogger” (as if the FBI might urgently need the hard-drive of the mastermind behind

Demands for students’ journalistic work product are uncommon, but any risk at all is too great a risk. A reporter who promises a source anonymity must be certain — not “pretty sure” — that the promise can genuinely be kept. And whistleblowers must feel absolutely confident — not “pretty sure” — that they will not be ratted out by a journalist facing imprisonment.

Illinois prosecutors did come after journalists’ memos, interview recordings and notes at Northwestern University’s Medill Innocence Project, seeking to disprove a news story that cast doubt on the guilt of a convicted murderer. Virginia prosecutors did come after the unpublished photos taken by college journalists at James Madison University, in their search for the culprits in a party-turned-riot.

In those cases — and in others involving investigations by state police and district attorneys — students had the benefit of state-level reporter shield laws that, at least arguably, allowed them to resist being conscripted as participants in legal proceedings.

It should be lost on no one that the dubious “record” for the longest prison stay by any journalist for refusing to comply with a federal prosecutor’s demands is held by a college student. Videographer Josh Wolf spent 226 days in federal prison rather than turn over his raw footage from a 2005 demonstration in San Francisco and testify before a federal grand jury about what he observed.

Unpaid college students are producing some of the most impactful investigative journalism being done in America today at any level. Work like this project produced by graduate students at Columbia University’s Stabile Center, who traveled halfway around the world to track down the story of how a shadowy Hong Kong energy brokerage secured exclusive mineral rights from African regimes in exchange for promises of infrastructure investments that, in many instances, never materialized.

Is that “real enough” journalism for you, Congressman Poe?

Or like this investigation by college journalists at Emory University, who exposed the secret past life of the ultra-conservative state Senate majority leader as a pitchman for sports gambling services, and detailed the senator’s web of business associations with a notorious handicapper whose operations were shut down after a federal racketeering suit.

Is that “real enough” journalism for you, Congressman Conyers?

As student journalism becomes increasingly more sophisticated, the prospect that federal investigators will take an interest in the journalists’ work becomes ever more likely.

It would be especially ungracious for the professional news media — which is only too pleased to profit from publishing the work of unpaid college interns — to pull up the gangplank and leave students behind (and much to their credit, shield-law advocates such as the Reporters Committee for Freedom of the Press, Society of Professional Journalists and American Society of News Editors have been steadfastly mindful of the vital newsgathering role students play).

The Obama White House badly wants a shield law — any shield law — to rehabilitate its battered image as the worst enemy of the news media since the guy who kept an actual written list of media enemies.

America’s most vulnerable journalists — those without the benefit of a corporate legal department, whose daily gauntlet includes the ever-present threat of censorship by their own institutions — should not be sacrificial pawns in a chess game of political expediency.

Listen to a podcast about the Josh Wolf case featuring one of his attorneys, David Greene, at this link.