What's Wrong With the Justice Department's New Press Freedom Guidelines

Last Friday, the Justice Department released revised guidelines governing the Department’s interactions with the press. President Obama had ordered Attorney General Eric Holder to conduct the review in response to the news earlier this year that the DoJ had obtained the phone records of Associated Press reporters and editors and the emails of a Fox News reporter.

The new guidelines go a long way toward addressing many of the main concerns press freedom advocates raised, but fall short in the key categories Free Press outlined.

For a quick overview of the revisions, see this look at the five key changes in the Department’s guidelines.

The Reporters Committee for Freedom of the Press and a separate coalition of media organizations filed detailed recommendations to Holder. Free Press endorsed many of those suggestions and also filed additional recommendations. We wanted to ensure that any new guidelines would protect independent and citizen journalists of all kinds, and we argued that the public must have a seat at the table in these debates.

Here’s where the guidelines fall short — and what we can do about it.

Who’s Protected?

Free Press called on the DoJ to take the approach of the Department’s own civil rights division. Lawyers in the civil rights division have repeatedly asserted everyone’s First Amendment right to record. But the new DoJ guidelines protect only “members of the news media,” the same phrase that appeared in the old rules.

Journalist Marcy Wheeler has two posts that take a hard look at how the Department defines the term “members of the news media.” Depending on how Justice Department applies these guidelines, Wheeler, a watchdog who live-blogged the Scooter Libby trial and covers national security issues, might not be covered. She argues that the new guidelines are tantamount to the government instituting an “official press.”

Wheeler reports that the Justice Department raised questions about its own definitions in meetings with editors and press organizations, but then decided not to address them in its revised rules. Perhaps the discussion would have moved farther ahead had the meetings included a broader community of stakeholders who care about the intersection of journalism and democracy. Just weeks earlier, more than 60 open government and civil liberties groups called for a more inclusive process.

How Much Transparency?

The new guidelines mandate that the DoJ keep detailed records of any subpoenas it issues for journalists’ records. This comes after Holder admitted to Congress that he didn’t know how often the DoJ seized journalists’ records. The DoJ will now release yearly reports on those numbers.

In addition, the DoJ is forming an internal “News Media Review Committee” and an external “News Media Dialogue Group” to advise the Department and assess these rule changes.

It appears that the public “Dialogue Group” will include only “news representatives” and DoJ attorneys. In our recommendations, we called on the Justice Department to open this process up to a larger group of stakeholders, including government transparency advocates and civil liberties groups. We also recommended allowing for more public participation, including public dockets and hearings — something similar to the approach other federal agencies take.

The Politics of Journalism

Last year, NYU Journalism Professor Jay Rosen tweeted, “Often, journalists don't care to recognize it, but everywhere in the world, including the U.S., a free press is the creation of law.”

The debate about who’s a journalist isn’t happening just at the Justice Department. New versions of a journalist shield law have been introduced in the House and Senate, and lawyers at the Bradley Manning trial recently spent a day considering the question.

Many commenters have argued we need to protect “acts” of journalism, not journalists. But that gets us no closer to defining what those acts are. “If the ultimate idea is to protect newsgathering activities,” Marcy Wheeler asks, “then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?”

We won’t have meaningful new laws that protect journalism unless and until there’s broad consensus on what journalism is in a networked age. Sen. Dick Durbin recently argued that Congress should define who counts as a real reporter. The journalist community responded to these comments with an almost unanimous rejection of the notion that lawmakers should make this judgment.

Still, we can’t ignore the role of public policy here. Indeed, new rules, guidelines and laws hinge on the question of who qualifies as a journalist.

If we want our laws to catch up to changes in our media, we have to do the hard work of building consensus between journalists and policymakers. We face a choice: to let government define journalism behind closed doors —or to take an active role in redefining and reasserting press freedom for the digital era.

Original photo by Flickr user Ryan J. Reilly

People + Policy

= Positive Change for the Public Good

people + policy = Positive Change for the Public Good