16 Feb 2005 Journalists’ (and Bloggers’?) Shield Laws: What is a “Reporter,” Anyway?

Balancing this favorable article by Joe Strupp in Editor and Publisher about the “reporter’s privilege” to be partially except from subpoenas is this excellent one by Dan Ackman in Forbes.

Editor and Publisher piece alerts us to bi-partisan legislation in Congress (H.R. 581 and S. 3440) to give “journalists” legal rights other mere mortals lack.

Such a law, of course, would require a federal definition of what constitutes a journalist.

H.R. 581 defines a journalist (a “covered person”) as:

A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that–

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

So, would a blogger be covered? Depends. (I’m reminded of Justice Scalia’s complaint that Congress too-often approves laws the meaning of which is unclear.)

As “A” seems obviously to cover bloggers, bloggers would qualify if they are considered covered by i, ii or iii,

So:

1) Is a blog a “periodical“?

2) Would a blogger who obtained information in the course of writing for a blog but who also writes books, or plans to write a book, be covered, but one who has no such plans not be covered?

3) If you use a “satellite system” (say, a cell phone hookup) to transmit data to your blog, or use a cable modem, does your blog qualify under Section ii’s references to “cable system” and “satellite carrier”? And, conversely, would data uploaded via a telephone modem/land line render one a “non-covered” entity?

4) What is the legal definition of “news agency”?

The Reporters Committee for the Freedom of the Press has examined the above-referenced section of H.R. 581 and concludes the bill does not cover journalists “without contracts or those who publish solely on the Web.”

The Reporters Committee’s definition, it seems to me, relies on increasingly-antiquated definitions of some of the terms. Is there a true distinction between a “news agency” and a group blog whose authors do original research and reporting? Reporting that may be read by 100,000 or more people in a single day on the main blog, and linked to by other blogs?

A number of questions come to mind:

* How would H.R. 581, if adopted, classify a four-person group blog at which one of the bloggers was a talk radio host, another worked for a trade publication, a third was a law professor who occaisonally contributed articles to law reviews and the fourth cut hair for a living? Are three of the bloggers shielded, and the fourth, not?

* Is it fair to give a radio station with a few thousand listeners at any given time more legal rights than writers of a news-oriented blog with ten times the audience? Is “fairness” important?

* The main sponsor of H.R. 581, Rep. Mike Pence, said in defense of his bill that “without the promise of confidentiality, many important conduits of information about government activity would be shut down.” If the purpose of the legislation to to protect disseminators of information about the government, lest speech be “chilled,” shouldn’t whistleblowers get similar protections against subpoenas?

* If a blogger printed some paper copies of his blog entries and handed them out on the street, would his blog become a periodical? If not, would it become one if he did this at regularly-scheduled intervals?

* Should publicly-funded media, such as NPR broadcasters, be exempt from shield laws, since being part of government should sufficiently abrograte the need to be protected from it?

I have more, but I’ll stop now with this thought: Let’s not use the federal code to try to define journalism.

Addendum: This legislation seems much more friendly to bloggers.

Addendum 2: Former Journalist Mark Tapscott has additional thoughts here.