Well, it's a good bet the dying newspaper industry would reap benefits, given who's helping to write the proposed amendment to the Media Shield law awaiting Senate approval:
From sponsor Sen. Chuck Schumer's website:
Schumer and Feinstein are working with representatives of the newspaper industry in crafting the new language that will explicitly exclude organizations like Wikileaks—whose sole or primary purpose is to publish unauthorized disclosures of documents—from possible protection.
So of all the people with skin in the game -- whistleblowers, digital media, television journalists, First Amendment experts, the citizen public who may just like to know what their government is up to -- it's one portion of a dying industry advising on this. And, it should be noted, doing so in a way that's suspiciously self-serving. Just look at what the criteria for a shielded "journalist" will be, according to Charlie Savage (writing, I note with appropriate ironic acknowledgement, in the New York Times):
Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America — which supports the bill — said Senate aides had asked his group to consult on the proposed changes.
Mr. Boyle argued that the WikiLeaks case could, paradoxically, help supporters of the bill. He contended that the increasing use of subpoenas to pressure reporters to identify sources created incentive for would-be leakers to send material to a group like WikiLeaks rather than to a traditional news organization subject to American law and having editorial controls and experience in news judgment. [Emphasis added.]
And we all remember what great editorial controls and "experience in news judgment" the newspaper industry gave us in the deplorable case of Judith Miller, the New York Times and the fevered march to war.
What makes this rush to punish Wikileaks via legislation doubly frustrating is that it's not necessary. By Schumer's own admission there are safeguards in place for just such instances, as he makes clear in his own statement on his website:
Schumer, the Senate’s lead author of the measure, said two parts of the existing bill already ensured that Wikileaks could never assert the privilege created by the legislation. First, the site does not fit the bill’s definition of a journalist, which requires that the covered party regularly engage in legitimate newsgathering activities. Second, the bill allows a judge to waive the privilege altogether if critical national security concerns are at stake.
So we're rushing headlong into -- once again -- letting traditional media define who is a "journalist" and who is not when there are safeguards already in place (although the "legitimate newsgathering activities" seems to me to be a whole area of gray muddle all its own inviting endless parsing and litigation. What's "legitimate?" And just how much explanatory material needs to accompany a whistleblower release to qualify as "newsgathering?").
Additional stupidity is piled on when one realizes, as the New York Times points out::
It is not clear whether WikiLeaks — a confederation of open-government advocates who solicit secret documents for publication — could be subject to a federal subpoena. Federal courts most likely do not have jurisdiction over it or a means to serve it with such a subpoena.
Moreover, WikiLeaks says that its Web site uses technology that makes it impossible to trace the source of documents that are submitted to it, so even if the organization were compelled to disclose a source, it is not clear that it would be able to do so.
To summarize:
- Wikileaks already would be subject to safeguards in the current proposed legislation as written, sans a specific amendment.
- Wikileaks would prove difficult to serve since it's not in the federal jurisdiction anyway.
- Even if Wikileaks could be served, it appears Wikileaks itself has no clue as to the identity of its sources.
- Wikileaks pushed its initial leaks through traditional news outlets: The Guardian, the New York Times and Der Speigel. Does this document laundering leave Wikileaks in the clear? Or does it implicate the newspapers as accomplices? If it exonerates in this case, what news organizations or outlets would not qualify as sufficiently legitimate?
- The newspaper industry is advising on who should be considered a "real journalist" through a useless, non-productive amendment.
So what, exactly, is really going on here? How about this, again from Savage:
Still, in case WikiLeaks or a similar organization sought to invoke a shield law, proponents of the legislation are trying to create legislative history that would show judges that Congress did not intend for the law to cover such organizations. The idea, aides said, would be to add language bolstering a section defining who would be covered by the law as a journalist — an area that can be tricky in an era of blogging and proliferation of online-only news media outlets.
Apparently just as Schumer is unwilling to let a flag-waving national security issue pass him by without weighing in (no matter how ineffectively), the newspaper industry will not let an opportunity go wasted to define who is practicing real journalism and who is not.
Guess which side of the divide online media and citizen journalists are going to fall once the Newspaper Association of America is through advising?
The good news is that at least one major daily newspaper, the Los Angeles Times, weighed in on the side of common sense:
Journalism is fast-changing, and Congress is slow-moving. One consequence is that the more Congress attempts to define journalism, the more anachronistic Congress becomes. Rather than trying to figure out who should be protected and who should not, Congress should focus on what it is trying to accomplish — namely, to preserve for citizens of this democracy the information they need to govern themselves, information that sometimes only becomes public if those who have it can supply it anonymously. The bill as written does not permit every leaker to escape punishment; it merely requires judges to balance the interest of protecting a source against the public's interest in the information sought, and it specifically creates a national security exception. Those compromises already go far — too far, in our view — toward intimidating sources, but they provide more than enough protection for what Schumer and his allies, including Sen. Dianne Feinstein (D-Calif.), fear.