United States: “independent” vs “accredited” is mostly an access issue, not a constitutional one

Thunder Bay – BACKGROUNDER – With the arrest this week of former CNN reporter Don Lemon who is now working as an independent journalist in Los Angeles. It raises questions about what rights under the Constitution a journalist in Canada and the United States have.

In the U.S., press freedoms under the First Amendment generally aren’t limited to people with press passes or newsroom jobs. There’s no national “accreditation” that determines who is (or isn’t) a journalist for constitutional purposes—courts usually look at what you were doing (news-gathering/reporting) rather than what badge you have.

Where the legal differences show up is in specific protections that are narrower than the First Amendment and can vary by jurisdiction:

1) Confidential sources and subpoenas: a patchwork, often based on function

• The U.S. does not have a single, blanket federal “shield law” that universally protects journalists from being forced to reveal sources in all federal proceedings. The Supreme Court held in Branzburg v. Hayes that reporters do not have a First Amendment right to refuse to testify before a grand jury (no automatic constitutional privilege).

• Most protections instead come from state shield laws or state court doctrines, and definitions vary. Some states explicitly include freelancers/independents; for example, New York’s shield law was amended to broaden “journalist” to include freelance authors.

• On the federal side, the proposed PRESS Act (S.2074, 118th Congress) aimed to create a federal shield framework, but (as of the most recently available legislative/advocacy records) it did not become law—it’s listed as introduced, and press-freedom groups described a Senate failure to pass it in December 2024.

Practical contrast: a staff reporter at a major outlet may have an easier time proving they fit a state’s statutory definition, but many states use broad, activity-based definitions that can cover independent journalists too.

2) Searches and seizures of journalistic materials: the federal Privacy Protection Act is often helpful to independents

A major U.S. federal protection that does not depend on “accreditation” is the Privacy Protection Act of 1980. It generally makes it unlawful for government officials to search for or seize certain “work product” or documentary materials from someone reasonably believed to have a purpose to disseminate information to the public (with exceptions). That framing can extend beyond traditional newsroom employees and can include independent publishers.

3) DOJ rules/policies about investigative tools aimed at the media: important, but not the same as a right

The U.S. Department of Justice has regulations at 28 C.F.R. § 50.10 governing how it uses tools like subpoenas/search warrants to seek information from “members of the news media.” This can matter in federal investigations, but it’s best understood as policy/regulatory limits on DOJ conduct, not a universal “press credential” law.
Recent reporting and analysis also show these DOJ media-protection rules can be revised by administrations, which means the practical landscape can shift even when constitutional principles don’t.

4) What “accreditation” really changes in the U.S.: access, not immunity

Accreditation/press badges most often affect physical access (government buildings, events, designated media areas) and sometimes logistical treatment at protests—not whether you’re “covered by the law.” The stakes are real: credential policies can determine who gets into key institutions and briefings. For example, The New York Times sued over a changed Pentagon press policy affecting credentials/access, underscoring how “press pass” issues can become First Amendment disputes.

Bottom line (U.S.): independent journalists are commonly protected when the law uses purpose/function tests(newsgathering for public dissemination), but outcomes can hinge on the forum (state vs federal), the exact statute, and the facts. And neither independents nor accredited reporters have blanket immunity from arrest if police claim probable cause for a separate offense.

Canada: independent journalists can be protected, but the strongest statutory protections hinge on a defined “journalist” test

Canada is different in one big way: federal law includes a statutory definition of “journalist” for key source/records protections.

1) Constitutional baseline: freedom of expression includes “freedom of the press”

Section 2(b) of the Canadian Charter of Rights and Freedoms protects “freedom of thought, belief, opinion and expression,” including “freedom of the press and other media of communication.”

This freedom isn’t limited to people employed by major outlets.

2) Statutory source protection: Canada Evidence Act s. 39.1 (Journalistic Sources Protection Act regime)

Under Canada Evidence Act s. 39.1, “journalist” is defined as someone whose main occupation is to contribute (regularly or occasionally), for consideration (payment), to the collection/writing/production of information for dissemination by the media—or someone who assists such a person.

That definition is significant for independents: freelancers who are paid and do journalism as a main occupation can fit.

The overall statutory scheme (enacted via the Journalistic Sources Protection Act) sets a framework designed to better protect confidential sources and related information.

3) Searches, seizures, and production orders aimed at journalist records: Criminal Code s. 488.01+

Canada’s Criminal Code s. 488.01 imports the same “journalist” definition (by reference to s. 39.1). In other words, the special handling rules for warrants/orders targeting journalist materials are tied to that same occupation/paid-contribution test—not to press gallery credentials.

4) Courts still matter: the statutory scheme has been interpreted by the Supreme Court of Canada

The Supreme Court of Canada has weighed in on how these protections operate in practice (including how “off the record” communications and source-protection principles are assessed under the modern framework).

Bottom line (Canada): Independent journalists can be protected—often strongly—but the key statutory regimes tend to ask whether you meet the legal definition (main occupation + paid contributions to disseminated journalism), rather than whether you’re “accredited.”

Key takeaway for Thunder Bay–area readers and cross-border protest coverage

For journalists (especially freelancers) covering protests in the U.S. and Canada, the “independent vs accredited” divide is less about whether you have rights and more about:

• Access (credentials determine where you can be),

• Which legal regime applies (state shield law vs federal court in the U.S.; statutory definition triggers in Canada),

• Whether you can demonstrate journalistic purpose/occupation, and

• What evidence authorities claim (because neither system provides blanket immunity from arrest tied to “being press”).