Has the US Department of Justice made an attempt to define what is or isn't journalistic activity? Developing new policy, but to what will it apply?

Question

From Politico's FBI raid on Project Veritas founder’s home sparks questions about press freedom

At a Senate Judiciary Committee hearing last month, Garland was asked who qualifies as a journalist under Justice Department policies. “It’s very difficult to make that kind of definition,” he said.

I'd like to find the full response and its context but so far haven't been able to. I've stepped through the 4 hour video at judiciary.senate.gov Oversight of the Department of Justice, Full Committee, October 27, 2021 and looked through justice Garland's written testimony but only found

We also issued a new policy to better protect the freedom and independence of the press. A free press is vital to the functioning of a democratic system under the rule of law. The Justice Department strongly values a free press, and we are committed to protecting the First Amendment and the journalists who rely on it to keep the American people apprised of the workings of their government.

The policy we adopted in July restricts the use of compulsory process to obtain information from, or records of, members of the news media. To further protect members of the news media in a manner that will be enduring, I asked the Deputy Attorney General to undertake a review to further explain, develop, and codify the policy into Department regulations. The Department also remains strongly supportive of congressional legislation to protect members of the news media.

Question: Has the US Department of Justice made an attempt to define what is or isn't journalistic activity? They are developing a new policy but to what activities will or won't this policy apply?

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Some possible differentiators:

• Duck test (if it looks like a duck and quacks like a duck...)
• I know it when I see it (US Supreme Court Justice Potter Stewart)

Answer 1

*Q: Has the US Department of Justice made an attempt to define what is or isn't journalistic activity?

Note that the regulations have undergone revision since the original post. The following is from the revision effective November 3, 2022. The previous version from 2015 was not as clear, simply identifying covered persons as members of the news media.

Currently, journalistic activity is identified as newsgathering and is defined in 28 CFR § 50.10 - Policy regarding obtaining information from or records of members of the news media; and regarding questioning, arresting, or charging members of the news media. Exceptions to newsgathering are also noted.

(b)(2) Definitions

(ii) Newsgathering is the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination.

(A) Newsgathering includes the mere receipt, possession, or publication by a member of the news media of Government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.

(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.

Answer 2

To my best understanding, the US statute currently does not have an explicit definition of what constitutes a "journalist" or "journalistic work".

This is not necessarily an exception globally, as some democracies also choose not to draw that line on statute book. The result is that - in effect - journalists are treated as normal civilians conducting the dissemination of information in the public interest.

That is not to say the US government does not recognize the existence of journalist, it absolutely does, but when it comes to determining whether a person is a journalist and whether their work constitutes journalism, that decision is often hashed out in the court.

The way it works is that journalists are allowed to conduct their work without interference until the government sues them for breaching certain code of conduct, and then the court has to decide whether the conduct is protected under freedom of expression. Historically, the US judiciary has ruled in favor of the press.

So I think the response from Justice Department is understandably vague. They would seek to formulate internal policy to instruct its employees on how to interact with the press, but ultimately their internal policy cannot overrule decades of legal jurisprudence (if their internal definition is too restrictive, it would certainly be struck down in court quickly).

In short, the status quo has not changed, namely the clearest line between "journalist" and "not journalist" remains in the US jurisprudence.

Answer 3

Short answer, no. Journalistic activity has not been legally defined. (An important note in QuantumWalnut's excellent response is related to journalists performing in that role.) A person can be employed as a journalist and can still write what ever trash they want. A journalist, IMHO, should be responsible enough to make it clear that they think they wrote and why (have reputable sources, vs telling a good story).

Culturally, we seem to expect journalism to be fact-based, because we try to provide the Press access to the facts. Maybe we should have "ethical reporting" as an activity that may be performed by a journalist, and ask that journalists and the government have a standard of ethics.

Freedom of the Press is part of the First Amendment and was intended to protect people who publish content against the government, whether spoken or written, whether fact or rumor or opinion. At the time the Bill of Rights was written, the people of the country were still very sensitive to government suppression. Hence, the Second Amendment.