Updated: July 30, 2013 7:35AM
Is each of Twitter’s 141 million users in the United States a journalist? How about the 164 million Facebook users? What about bloggers, people posting on Instagram, or users of online message boards like Reddit?
In 1972 — long before anyone had conceived of tweets or Facebook updates — the Supreme Court, in Branzburg v. Hayes, considered whether journalists have a special privilege under the First Amendment to withhold the identity of their sources. Paul Branzburg, a reporter in Louisville, Ky., had written a series of articles about drug use in Kentucky that included anonymous quotes from drug users and a photograph of a pair of hands holding hashish. A grand jury ordered Branzburg to reveal the names of his sources. He refused and was held in contempt.
In Branzburg’s case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not.
The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.
But who should be considered to be a journalist?
For a few years now, a bill to protect journalists from revealing their sources and documents has been making its way through Congress. With no current federal statute recognizing a privilege for journalists, the so-called “media shield” law attempts to establish one.
Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.
The media informs the public and holds government accountable. Journalists should have reasonable legal protections to do their important work. But not every blogger, tweeter or Facebook user is a “journalist.” While social media allows tens of millions of people to share information publicly, it does not entitle them to special legal protections to ignore requests for documents or information from grand juries, judges or other law enforcement personnel.
A journalist gathers information for a media outlet that disseminates the information through a broadly defined “medium” — including newspaper, nonfiction book, wire service, magazine, news website, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.
To those who feel politicians shouldn’t define who a journalist is, I’d remind them that they likely live in one of the 49 states, like Illinois, where elected officials have already made that decision.
The leaks of classified information about the NSA’s surveillance operations and an ongoing Justice Department investigation into who disclosed secret documents to the Associated Press have brought this issue back to the forefront and raised important questions about the freedom of speech, freedom of the press and how our nation defines journalism.
It’s long past time for Congress to create a federal law that defines and protects journalists.
Dick Durbin, a Democrat, is the senior senator from Illinois.