Yesterday, the U.S. House of Representatives overwhelmingly passed -- for the first time ever -- a federal shield bill by a vote of 398 to 21. This follows on the heels of the Senate Judiciary Committee's passage of a similar bill on October 4. The House version, however, makes a critical change in the language regarding who is entitled to the bill's qualified protections by excluding those who do not receive "substantial financial gain" for their activities.
Under the House version, H.R. 2102, a "covered person" is defined as
a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.
I've highlighted the new language in the quote above, which came about as the result of a last minute amendment by Representatives Boucher and Pence, two cosponsors of the original bill that did not include this ill-conceived requirement. In contrast, the original version of the House bill extended its coverage to any person "engaged in journalism," including "a supervisor, employer, parent, subsidiary, or affiliate of such covered person."
This change significantly narrows the bill's coverage and is plainly aimed to exclude non-traditional journalists. But it doesn't just exclude those whom some in Congress derisively call "bloggers." The new definition would likely exclude many freelance journalists who must rely on other work to supplement their incomes. Do we really want judges to be deciding whether a journalist is earning enough money to qualify for protection?
More to the point, is financial remuneration the criterion we want to be using when we draw the line between those who are entitled to engage in journalism under the protection of a federal shield law and those who must venture forth unprotected? It seems to me the answer is no. To limit the privilege only to journalists who receive "substantial financial gain" misses the point of how media and journalism are evolving. Most crucially, it misses the growing -- and essential -- role of citizen media creators. They are the closest analog since the nation's founding to the Tom Paine-style pamphleteers the First Amendment was designed, in part, to encourage.
The House and Senate versions also differ in the scope of protection they provide to sources and newsgathering materials. Under the Senate version, S.2035, protection is afforded only if a confidential source is involved or when documents are acquired upon a promise of confidentiality. The House version contains no such limiting language, thereby allowing journalists to do their work without fear of becoming an arm for law enforcement and overzealous lawyers who want to force them to turn over the entirety of their newsgathering materials.
If the full Senate passes something before the end of this year -- an uncertain proposition according to the Associated Press -- both versions will end up in conference where the competing versions will have to be reconciled. It's likely that any final legislation will incorporate both limitations, resulting in a shield bill of limited scope and usefulness.
Journalists -- and more importantly, the public -- desperately need a federal shield law. But what we need is a federal shield law that protects all acts of journalism regardless of whether they are done for pay.