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The definition of a “journalist” is more narrowly defined, thereby excluding many independent reporters and bloggers from avoiding court subpoenas

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JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

Earlier this month, the Senate Judiciary Committee approved a federal media shield law called the Free Flow of Information Act of 2013 that provides legal protections for journalists. But some critics say that the legislation does not go far enough to protect independent journalists and it leaves too much room for judicial discretion and excludes whistleblowers, bloggers, and groups like WikiLeaks.

Joining us now to discuss this is David Greene. David is the senior staff attorney at the Electronic Frontier Foundation and one of the country’s leading advocates for and commentators on freedom of expression.

Thanks for joining us, David.


DESVARIEUX: So, David, my first question is–let’s talk about this bill. It was introduced in the Senate back in 2007. But why has the Obama administration really been pushing for its passage?

GREENE: That’s a good question. It’s–the bill has just recently, the past few months, gathered momentum. And my understanding is that the momentum is really coming from the congressional side and not as much from the administration, that this seems to be one of the reactions that members of Congress are having, at least on the Senate side, are having to the Snowden disclosures.

DESVARIEUX: Okay. And who is actually protected under this law?

GREENE: Well, the way this law works–so this law basically picks up where the 2007 bill that the Senate–also the Senate had approved takes off. And what they had done there was try and have, define who was covered by the bill and had a category called covered persons, and it tried to include in there both people who were employed or affiliated or writing for media organizations. And that could be in a number of various media–print or electronic or broadcast.

And it also tried to have in it what we call a functional definition, which would more broadly include those who were gathering news for the purposes of disseminating it to the general public. And that’s how it–and that was the 2007 bill. That was the starting point for this bill. What happened was before that bill [incompr.] committee senators, Senator Feinstein particularly, posed new language that would make it much more limited, that instead of defining covered persons, would actually try and define journalists and was really directed at covering only those persons who were either employed by a media entity or who had been employed with one for some steady period of time. And there were a few different formulas how you could qualify under that if you weren’t currently working for a media entity but had previously.

DESVARIEUX: Okay. And why would Senator Feinstein be pushing for limited protection?

GREENE: Well, yeah, what she said, what she said in her public statements was that she was concerned that–she didn’t want, you know, the high school dropout, you know, setting up a blog and then suddenly be able to be protected by this law. And that was the example she kept on giving. And she talked about she didn’t want hate organizations who would [incompr.] publish their own hateful stuff to be protected. There were several types of entities that she feared might be covered by a law that had a broader definition.

DESVARIEUX: Are you buying that at all?

GREENE: Well, am I buying that? You know, I think there’s a lot of people who don’t like these laws feel like, oh, you know, everybody and their brother’s going to be–won’t have to testify because they’ll come under this law. And I don’t think that’s correct. I don’t think that’s the experience that the 40 states that have shield laws, have had with their own laws. But you certainly hear that a lot.

DESVARIEUX: Okay. And under this new law, would it be able to prevent government interference in investigative journalism like, let’s say, for example, what we saw happen to the Associated Press a few months ago?

GREENE: Yeah. And one important thing that I wanted to add was that the bill that actually passed out of the Senate committee, well, it ended up being a compromise between the 2007 bill and the Feinstein amendment. It went back to a definition that the compromise language was defining cover journalists so that the bill–the current bill doesn’t purport to define who a journalist is for any other purpose other than this law. It doesn’t by its language purport to include all journalists within its coverage.

And it had some other modifications as well. It took out the requirement that someone be salaried. With these look-back provisions, it made them much more inclusive than they had been.

And then the third thing it did that’s really important was that it created a provision that even if you don’t fit within the other definitions of covered journalist, that a judge could still on a case-by-case basis decide whether or not in the interest of journalism and in the public interest that the protection should still extend [incompr.] That’s the bill that actually passed [incompr.] committee, which is far superior to the definition that Senator Feinstein had proposed.

DESVARIEUX: Okay. And for you, what additional protections would you recommend for journalists when it comes to potentially being prosecuted for disclosing secrets?

GREENE: Yeah. Well, so this bill doesn’t cover–so one of the things that this and, frankly, no other shield law really covers, protects against is being prosecuted for disclosing secrets. And we haven’t really–we haven’t had a situation where a journalist has been so prosecuted. Prosecutions tend to go against the sources. And what those of us on the free speech side of this like to think [incompr.] really isn’t, there could not be a law that could punish someone who lawfully received information that is a matter of public interest who could–you can’t punish that person for publishing that information if they did nothing wrong to obtain the information.

So we do make–the law does make a distinction between sources who may have broken the law or violated a contractual obligation and then those who receive the information from them. So the shield law isn’t really geared towards protecting against prosecutions. What it’s geared towards is protecting journalists for having to be witnesses against other people, from disclosing their confidential sources’ identities, from producing documents that they may have gathered during the course of their newsgathering. So that’s what the shield law [incompr.] protections. It’s protections against being a witness, but it–unfortunately, don’t protect against–and even the shield laws in states that have them don’t protect against prosecution.

DESVARIEUX: Okay. So in your estimate, this doesn’t go nearly far enough, either, for protecting–.

GREENE: Well, I think we have really strong protections built in the First Amendment against prosecution against publication. Where that breaks down is if you are being accused of wrongdoing yourself. And if you are being accused of wrongdoing yourself, then these First Amendment protections become less robust.

And what we’ve–the disturbing trend we’ve seen is that at least there hasn’t been a prosecution against a journalist, but we’ve seen some rhetoric coming out of Holder’s Justice Department that now when they talk about wanting information from journalists, they–we’ve been seeing language slip in about how this journalist may have actually broken the law in obtaining the information. Again, there hasn’t been a prosecution on that, but it does seem like there’s at least [incompr.] rhetoric argument that there should not have been legal protection to publish information at all.

DESVARIEUX: Okay. Very interesting story. Thank you so much for joining us, David.


DESVARIEUX: And thank you for joining us on The Real News Network.


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David Greene, Senior Staff Attorney at the Electronic Frontier Foundation, has significant experience litigating First Amendment issues in state and federal trial and appellate courts and is one of the country's leading advocates for and commentators on freedom of expression in the arts. David was a founding member of the Internet Free Expression Alliance, and currently serves on the Northern California Society for Professional Journalists Freedom of Information Committee, the steering committee of the Free Expression Network, the governing committee of the ABA Forum on Communications Law, and on advisory boards for several arts and free speech organizations across the country. David is also an adjunct professor at the University of San Francisco School of Law, where he teaches classes in First Amendment and media law and an instructor in the journalism department at San Francisco State University. He has written and lectured extensively on many areas of First Amendment Law, including as a contributor to the International Encyclopedia of Censorship. Before joining EFF, David was for twelve years the Executive Director and Lead Staff Counsel for First Amendment Project, where he worked with EFF on numerous cases including Bunner v. DVDCCA. David also previously served as program director of the National Campaign for Freedom of Expression where he was the principal contributor.

David's work has been recognized by California Lawyer magazine as a 2013 California Lawyer Attorney of the Year, and by the SPJ Northern California as the recipient of its 2007 James Madison Freedom of information Award for Legal Counsel.  He was also awarded The Hon. Ira A. Brown Adjunct Faculty Award by USF Law School in 2012.