Model legislation supported by the National Rifle Association and the American Legislative Exchange Council that would make it illegal for private citizens to conduct stings exposing illegal gun sales is being criticized by veteran investigative reporters and media law experts who say it could negatively impact undercover journalists who report on such activities.
"This law appears to create a shield for illegal conduct. We would be very concerned as investigative reporters with any attempt to criminalize legitimate reporting. Reporters don't go out and somehow force gun dealers to make these sales," said Stephen Engelberg, managing editor at ProPublica.org, the Pulitzer-Prize winning investigative reporting site. "The illegal activity is the sale of the guns, not the failure to flash a press badge for the sale of the gun."
The so-called "Honesty in Purchasing Firearms" bill was presented in August 2011 by NRA lobbyist Tara Mica to ALEC's since-disbanded Public Safety and Elections Task Force. The task force adopted it as model legislation.
The bill states, in part, that:
Any person who knowingly solicits, persuades, encourages or entices a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances which the person knows would violate the laws of this state or the United States is guilty of a felony.
The bill also makes it illegal to intentionally give a licensed firearm dealer or private seller "materially false information with intent to deceive the dealer or seller about the legality of a transfer of a firearm or ammunition." Violators are punished with up to a $5,000 fine and five years in prison.
The NRA has explicitly stated that such legislation, which has been adopted in several states, is intended to target undercover stings by gun violence prevention activists seeking to shine a light on illegal private sellers.
Those efforts typically involve private dealers selling firearms to undercover activists after those individuals tell the buyer they don't think they could pass a federal background check. Such checks are not required for the transfer of firearms by private sellers, only federal firearms licensees, but it is illegal for anyone to sell a firearm if they have reason to believe the buyer can't legally own the weapon.
Critics contend the proposed law could block undercover reporters who seek to purchase weapons in this manner in an effort to expose the criminal practice.
Earlier this year NBC national investigative reporter Jeff Rossen engaged in such a sting and produced an extensive report for Today which the network said "exposes how simple it is for criminals and even terrorists to purchase deadly weapons in public places - with no questions asked."
"It's ill-guided, or misguided or worse," said Sandra Baron, executive director of the Media Law Resource Center, which advises media outlets on legal issues, when asked about the bill. "It might also provide some basis for a constitutional challenge to such a bill if it were enacted in that it is intended to single out the press and those with a particular perspective on illegal gun sales."
She later added, "The whole notion is that if we can make it unlawful to show and tell, then no one will ever know about it. It is an extraordinary effort and I believe it is a desperate one when you have to penalize those who would make public unlawful acts; it is a pretty desperate measure."
David Cay Johnston, a Reuters columnist and board member at Investigative Reporters and Editors, the leading association of investigative journalists, said the bill is aimed at allowing illegal gun sales to go unchecked and to block reporting on them.
"Yes, clearly it seems to be designed to foster flagrant illegal conduct and is indicative of a variety of efforts around the country to block some light," said Johnston. "The best way to find problems is to put a light on it; if you can block some light, you can continue with the behavior. How can any honorable person support a law whose result is facilitating continued criminal conduct?"
Lance Williams, senior reporter at the Center for Investigative Reporting, a California-based non-profit news outlet, said undercover reporting is often necessary to gain "tremendous insights."
"I think criminalizing that is not a good thing because those are well-intentioned acts and there is also a First Amendment element to this," he said. "I don't think we want to get into criminalizing sleuthing like this."
Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, a non-profit group that advocates for reporter rights, predicted such a law could limit reporting.
"The problem I would see is the substantive portion of the law, would that survive the review of the courts?" she asked. "If it were to be upheld as a law it would definitely have an impact on the ability to do reporting."
Gene Policinski -- senior vice president and executive director of the First Amendment Center, which advocates for free speech and press issues, and a former top editor at USA Today -- compared the law's aim to the 1992 Food Lion case, in which ABC News sent two reporters undercover to videotape unsanitary conditions in Food Lion supermarkets.
ABC News was criticized for having reporters lie on resumes to obtain jobs in the food stores and was later sued by Food Lion for alleged fraud, trespassing and unfair trade practices. A jury awarded the chain a $5.5 million settlement, but it was later lowered to less than $400,000 and eventually almost entirely overturned on appeal.
While the case raised concerns about undercover reporting, Food Lion never claimed the reporting was inaccurate and never sought any retraction of facts.
"It reminds me of the Food Lion case where an existing law became the focus rather than the thrust of the story that was an allegation that they were regrinding meat to make it appear fresh," said Policinski.
He cited the impact the NRA-supported bill would have on anti-gun groups seeking to expose wrongdoing more than journalists.
"As a matter of public policy, do we want to preclude citizens from holding people accountable?" Policinski asked. "That is where I would rather see the debate. There are, in addition to news organizations, a lot of public interest organizations. This may well be one of those areas where we want citizens to be able to do this and if some of them are journalists, then that is the case."
But asked if the bill could also deter reporting on such issues, Policinski stated: "I can't tell you that isn't going to happen, particularly in an era where we have smaller newsrooms, fewer people to do investigative work."