Feds to treat bloggers as journos?
Latest in a long line of failed legislation
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.
Whatever strength the shield might have had left after that rude emasculation would be further diminished by two other limiting provisions contained in the bills.
Along with information related to crimes, the shield would not apply to information that presents an imminent danger to national security or a threat of death or bodily harm. Information relating to the identity of anyone who discloses a trade secret would also fall outside the shield's protections.
This would effectively doom the protection that a California appeals court granted to bloggers in the Apple v. Doe case. The bloggers in that case published secret Apple information on a future product, and the company sued to learn who had leaked the information.
In a landmark decision, the court held that the bloggers could claim the protection of the California shield law, even though they didn't work for a traditional news service, and despite the fact that the information they published might constitute a trade secret.
The court argued that, while the publishers might be separately liable for publishing trade secrets, Apple couldn't compel them to reveal their sources based solely on Apple's claim of a trade secret. The information had value to the public, the court reasoned, and the verbatim posting of the Apple document was an act of journalism that deserved the benefits of California's reporter shield.
Under the proposed federal shield, the blog publishers would not enjoy the same protection, since the identity of those sources who reveal trade secrets would not rest under the aegis of the bills' protections. If companies could find a legal excuse to try their blog grievances in federal court, the shield would not protect the identities of employees or partners who leak trade secrets to industry bloggers.
Despite its limitations, the bill does at least take a step forward by acknowledging that bloggers, and others outside the traditional media outlets, do in fact constitute members of the fourth estate. One of the main problems with considering bloggers as reporters in the past was that most bloggers are also enthusiasts, and it's hard to tell where the reporter starts and the fanboy stops. Many state laws get around this by crafting their reporter's shields to protect only those individuals who are affiliated with a traditional newsgathering organization.
Apple attempted to apply this reasoning to the blog publishers in Apple v. Doe, arguing that the reporter's shield didn't protect them since they weren't affiliated with the big boys of mainstream journalism - TV stations, newspapers, magazines, etc.
The court rejected Apple's contentions and argued that there was no good test to distinguish between "legitimate" and "illegitimate" news. Any attempt to do so, argued the court, would violate a basic principle of the First Amendment that the marketplace of ideas, and not the government, should determine the relative worth of ideas.
The idea that blogs are "illegitimate" news persisted, though, even after that groundbreaking decision. Many pundits trotted out the argument again during the debate over Josh Wolf's contempt conviction, wondering whether someone who supported and sympathized with the subjects of his reporting could ever qualify as a journalist.
Of course, if being in bed with your sources would push a reporter outside the proposed shield, the entire Washington press corps would be excluded. Rather than getting hung up on a person's job title or professional affiliations, the new bills focus more on ensuring that the reporter/blogger was in fact engaged in an act of journalism, and not proselytizing on behalf of a pet cause or throwing up wild defamatory statements on the behalf of unnamed "sources."
Christine Tatum, President of the Society of Professional Journalists and Bob Cox, President of the Media Bloggers Association, both expressed concerns that the proposed shield would encourage many people to claim protection for irresponsible behavior on the grounds that they are engaged in journalism, thus besmirching the good name of bloggers/journalists everywhere.
In the end, they argued, it will be up to judges to sort through the facts of each particular case to determine what constitutes real journalism - exactly what the California court wanted to avoid, and a possible violation of the First Amendment according to that court's reasoning.
But before you get hung up on nightmare visions of black-robed judges revoking press credentials for your blog, keep in mind that Congress seems to enjoy its perennial tradition of rejecting reporter shield laws.
Which is bad for reporters generally, but at least the small-time journos are finally getting some respect. ®