Reporter Sheild Law Should Protect Bloggers as Well

Julie Hilden, writing at FindLaw.com argues that federal reporter sheild legislation should be passed , but only after addressing the blogger as reporter issue.

Last week, the proposed Free Flow of Information Act of 2007, H.R. 2102, was voted out of the House Judiciary Committee. The legislation, if enacted, would create a federal privilege for journalists to protect their confidential sources, in the face of courts' or prosecutors' demands that they testify about (or otherwise disclose) the source's identity, or face jail.

snip

The privilege the Act would create is not absolute. Its application would be resolved on a case-by-case basis, based on a balancing of the government's interest in disclosure against the media's interest in preserving its ability to offer confidentiality to sources speaking on matters of public interest. In the criminal context, in particular, the law looks to whether the information sought to be shielded is "essential" to the investigation, the prosecution, or the defense (in which case, Sixth Amendment fair trial rights would be implicated).

In addition, the proposed legislation contains a specific exception for an actual, imminent danger to national security or public safety (as well as other exceptions for certain categories of information). Thus, any extreme hypothetical where the journalist is protecting a source who is, say, a terrorist or a criminal on the loose and about to wreak havoc is ruled out by the Act's own terms.(link in original)

Hilden argues that a federal rule to supplany various state laws on the matter, with different rules, interpretations and applications would simply the field of law. Given that freedom of press issues are implicated, a federal law seems appropriate. However, Hilden says that the definitions provided in the statute may not necessarily cover bloggers as journalists:

The Act's definition of the persons it protects is fairly reasonable: It covers both "a person engaged in journalism" and "a supervisor, employer, parent, subsidiary, or affiliate" of such a person.

"Journalism" is defined, in turn, as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

Personally, I would read these definitions to apply to bloggers, but it's very possible courts may not. In past cases, journalists without traditional credentials have been denied the coverage of the privilege. One example is Vanessa Leggett, whom I discussed in a prior column. Though her interviews occurred in the course of research for a nonfiction book, she served 168 days in jail because a court - unreasonably, in my view - would not deem her to be a journalist.

Another example is blogger and independent journalist Josh Wolf, who was imprisoned from August 1, 2006 to April 3, 2007. Wolf reported on protests and progressive events from the viewpoint of advocacy, through video that then appeared on the Internet, rather than purporting to offer neutral coverage. He is often referred to as a "video activist." Would he necessarily be deemed to have engaged in "journalism" under the proposed Act? Or might a conservative court see him as more agitator than journalist?

Adding a brief sentence to the statute -- "'Journalism, as defined for these purposes, need not be conducted by members of the traditional news media, but also may be an enterprise engaged in by paid or unpaid citizen journalists, including those who post their work on websites on the Internet" - may save a future Leggett or Wolf many months in jail. For that reason, it's very much worth adding.

On this site, I don't do a great deal of originial "reporting" as the term traditionally implies. I may call attention to a local or state issue and draw comparisons or comment, but I don't usually go digging for "news." However, there are many people who do this kind of blogging and regardless of whether their viewpoint is neutral or not, they should be accorded the same privileges as anyone else engaged in "professional" journalism. While the mainstream media may oppose the language Hilden suggests out of fear of being supplanted by "citizen-journalists," that ship has already sailed. Bloggers are here to stay and they are journalists, even if they are not getting paid or have press "credentials."