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Feds to treat bloggers as journos?

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Try not to get your hopes up too much, Blogosphere, but twin bills introduced in the US House and Senate recently could make all your wildest federal reporter shield dreams come true.

If the bills pass. Which, as history shows us, ain't bloody likely.

Right now, 32 states and the District of Columbia have reporter shield laws on the books, but the federal government does not. Bills to create such a shield have been introduced in Congress in each of the past three years, but have failed each time. Those bills added to dozens that have floundered in Congress since the 1970s.

The current bills up for rejection propose a limited shield against federally-compelled disclosure of sources or information for those engaged in journalism. What makes these bills different from the others offered up (and shot down) in the past is that the bill defines a "covered person" in such a broad fashion that part-time bloggers engaged in activities fitting the bills' definition of journalism would enjoy the same protection as a full-time Washington Post political reporter.

The new bills essentially treat journalism as the dissemination of information of public interest to the interested public. This notion of "information of public interest" has some history in the common law, and usually refers to information that has significance to society, such as politics, corporate news and the like. So a blog entry about how cute your cat looks while it's hacking up a furball on your roommate's new bedspread probably won't cut the mustard, even if it ends up getting a million hits.

But bloggers who cover matters of public interest would almost certainly have some protection under the proposed laws. Representative Rick Boucher, one of the House bill's main sponsors, specifically mentioned bloggers involved in newsgathering and reporting as making up some of the bill's intended beneficiaries.

The idea of a federal reporter's shield has received considerable attention in recent years, after several highly publicized cases ended with reporters going to jail on contempt charges when they refused to hand over sources and information in federal investigations. Along the way, the distinctions between bloggers and traditional reporters have cropped up as an important new issue in the debate.

One of the bloggers sent to the slammer was freelance journalist and leftist writer, Josh Wolf, who ended up doing the longest stint in federal prison ever recorded for a reporter who refused to testify or name his sources. Wolf refused to testify before a grand jury or release unpublished footage he had shot of a San Francisco anarchist rally that ended in violence.

Even under the proposed bills' blogger-encompassing scope, though, Wolf probably would not have enjoyed any reporter's privilege, since the events he reported on involved criminal activities. Reporters would not be able to avoid testimony or withhold the identity of their sources if the information was essential to a criminal investigation, under the language of the two bills.

This provision knocks out the teeth of the legislation, since so much of what reporters cover involves crimes and criminal investigations. The Valerie Plame leak affair? Crime. The Balco/Barry Bonds grand jury leak? Crime. The anarchist riot? Crime.

See what we mean? All of the above were crimes, all of them were situations where the reporters would not have been able to claim any privilege under the new bills, and all were situations where the reporters ended up serving time for contempt.

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