The Newseum Institute’s First Amendment expert, Gene Policinski, originally published this commentary on the Newseum blog, and has given First Amendment Watch permission to reprint.
I understand the motivation behind the just-proposed Journalist Protection Act, which would make it a federal crime to attack those involved in reporting the news. The legislation comes at a time of particularly vocal attacks on news operations and individual reporters, many of which stem from the highest office in the land.
I admire the goal — preventing or penalizing misguided thugs who would censor through violence. And I salute California Rep. Eric Swalwell for introducing it in an era in which support for journalism is at an all-time low.
But some part of me — the free press advocate in me — hopes the proposed act never becomes law. Not because journalists don’t need protection, but because I fear unintended consequences. As the old maxim goes, “No good deed goes unpunished.”
The great power, and the proper position, of a free press has always been that it represents “the people.” The press is — simply and magnificently — not a group apart, but part of that group. It is not made up of “elites” or players united in some grand conspiracy to control the news or steer the nation, as some grandstanding politicians claim, but a disjointed gaggle of vocal, well-informed fellow citizens, who are employed to report on behalf of us all. Those who would damage democracy’s checks and balances by isolating the “watchdogs on government” from fellow citizens would like nothing better than to have journalists themselves give credence to such a separation.
In a Feb. 5 news release, Rep. Swalwell makes his good case for the Journalist Protection Act: “President Donald Trump’s campaign and administration have created a toxic atmosphere. It’s not just about labeling reports of his constant falsehoods as #FakeNews — it’s his casting of media personalities and outlets as anti-American targets, and encouraging people to engage in violence.”
Swalwell, while conceding that not all attacks against journalists in the U.S. can be connected to Trump, said nonetheless that “such antagonistic communications help encourage others to think, regardless of their views, that violence against people engaged in journalism is more acceptable.”
Journalism groups also noted, in the news release, the dangers their members now face. Broadcasters in the field often work alone or with a single colleague, said Charlie Braico, president of the National Association of Broadcast Employees and Technicians. “With their expensive and cumbersome equipment, they are easy and tempting prey for anti-media extremists and thieves.”
“Dozens of physical assaults on journalists doing their jobs were documented by the U.S. Press Freedom Tracker in 2017,” said Rick Blum, director of News Media for Open Government. “Physical violence and intimidation should never get in the way of covering police, protesters, presidents and other public matters.”
The tracker that Blum refers to is a new database, launched and operated by the Committee to Protect Journalists, which logs arrests, harassment and physical attacks on journalists. As of Feb. 7, it showed that since January 2017, 30 reporters in the U.S. have been attacked while covering protests and two reporters had been assaulted by politicians. (Note: The Newseum is among the journalism groups supporting the database project.)
Globally, the situation is much grimmer: According to Freedom House, an international freedom advocacy group, barely 13 percent of the world’s population lives in nations where the press is considered free. The CPJ reports two journalists killed thus far in 2018, 262 imprisoned since 2017, and 58 journalists missing around the world.
So to all those critics who already are attacking Swalwell’s bill as unneeded or rooted in partisan politics — sorry, but the threat to journalists is real from those who consider violence an acceptable form of press criticism.
Still, we should be wary of giving journalists a special place in the zone of laws that already protect us all from assault, battery or worse. Granted, the proposed act could be an alternative when local officials refuse to follow up on an attack — or do so ineffectively. But I like the old newsgathering maxim that “journalists have no more rights than anyone else … but also have no fewer rights.”
Better to encourage police and prosecutors to zealously do their jobs when an attack occurs. Better we hold accountable politicians and others who — for political gain or other unscrupulous motives — choose to simply taunt the news media rather than doing the hard work of legitimate, fact-based criticism.
The Journalist Protection Act is prompted by sincere and worthy motives — and there is a sickness in the land today that condones and encourages threats and violence against journalists. But a free press is better protected by laws that protect us all.
Gene Policinski is president and chief operating officer of the Newseum Institute. He can be reached at firstname.lastname@example.org, or follow him on Twitter at @genefac.