“Who is a journalist is a question we need to ask ourselves,” said U.S. Sen. Lindsey Graham, addressing reporters from the corner of his second-floor office on Hampton and Huger streets. “Is any blogger out there saying anything — do they deserve First Amendment protection? These are the issues of our times.”
Answers to those questions are what South Carolina’s senior U.S. senator wants to figure out as he helps draft a bipartisan federal media shield law to protect members of the press from their government. The Republican announced his plans to push such a bill during a May 29 news conference in his Columbia office. The legislation comes in response to criticism of a broad subpoena by the U.S. Justice Department of the phone records of Associated Press reporters and editors, and also a DOJ investigation into a Fox News reporter — a probe on which U.S. Attorney General Eric Holder personally signed off.
In both cases, the U.S. government was trying to sniff out how reporters received classified information. The scandals came around the same time the IRS was apologizing for targeting conservative groups that were applying for tax-exempt status. The convergence of scandals created a feeding frenzy in Washington, and political opponents of President Barack Obama smell blood in the water.
A media shield law died in Congress in 2009. Among other provisions, that law would have offered members of the media protection from having to testify in federal cases or from coughing up documents. On May 20, White House press secretary Jay Carney said Obama endorses the idea of a media shield law being taken up again by Congress.
South Carolina’s Graham is the lead GOP sponsor of the bill. He’s working with Democratic U.S. Sen. Chuck Schumer of New York and six other senators, three Democrats and three Republicans.
Graham didn’t give specifics on the law, but said it would make it more difficult for the government to get a reporter’s notes and strike the right balance between freedom of the press and protecting national security interests.
Asked how he’d determine whether someone is a journalist, Graham said it would likely take some revision of DOJ guidelines to make sure they’re up to date with current technology and the new media landscape. The DOJ hasn’t updated its guidelines about how it investigates reporters since the 1970s or ’80s, Graham said.
Only when it’s a matter of national security, Graham said, can the government get involved in journalism.
In 2009, when Congress last tried to hash out a media shield law, Clint Helder asked in Columbia Journalism Review, “Are journalists best defined by the act of reporting (what’s known as a functional definition), or by how they are employed (a status-based definition)?”
It’s a question Graham appears to be grappling with.
“You can sit in your mother’s basement and chat away, I don’t care. But when you start talking about classified programs, that’s when it gets to be important,” he said during a Free Times interview. “So, if classified information is leaked out on a personal website or [by] some blogger, do they have the same First Amendments rights as somebody who gets paid [in] traditional journalism?”
South Carolina has its own shield law for reporters. Graham voted for it as a member of the S.C. House when it passed decades ago.
The state law protects those who are engaged in the gathering and dissemination of news to the public, according to Jay Bender, the attorney for the state Press Association who lobbied for the bill.
“It could include a blogger — and it has,” Bender says. “Who among us can determine who is a reporter? In South Carolina we avoided that by focusing on persons and organizations engaged in gathering and the dissemination of news.”
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