As anyone who's been faithfully reading the CMLP blog knows, the law hasn't been particularly good at dealing with the intersection of media shield laws and bloggers. Although there seems to be a modest trend towards application of shield laws to anonymous commenters on news stories, the judiciary's application of shield laws to bloggers has been pretty hit and miss (and sometimes avoided all together).
That makes the efforts of a couple New York legislators to proactively address the problem a most welcome change. According to The New York Times, State Senator Thomas K. Duane and Assemblywoman Linda B. Rosenthal have submitted a bill that would extend the protections of New York's robust media shield law to bloggers. In a marvelously hideous 262-word sentence (which I've trimmed down to spare you from reading), N.Y. Civ. Rights Law § 79-h (b) currently states that:
[N]o professional journalist or newscaster . . . shall be adjudged in contempt by any court in connection with any civil or criminal proceeding . . . for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication . . . by any . . . professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity . . . .
As the Times notes, the problem with the current law isn't so much the portion cited above, which arguably does protect blogs as a "medium ... which has as one of its main functions the dissemination of news to the public." Rather, the problem is that bloggers are not necessarily "professional journalists." § 79-h (a)(6) states that a "professional journalist" is one who is engaged in news gathering and publication "for gain or livelihood." Thus, the many bloggers who don't get paid for their efforts are left out in the cold.
As Lucy Dalglish of the Reporters Committee for Freedom of the Press points out in the Times piece, the better solution for protecting bloggers may simply be to take out the "professional" and "for gain or livelihood" portions of the law. (Note: Ms. Dalglish is on the CMLP's Board of Advisors.) As Ms. Dalglish says, “Some people are doing valuable journalism when they blog. Others do not. What you are trying to protect is the journalism function, not the technology or the platform.”
It does seem wise to omit the "professional" wording in the statute. After all, the statute really is meant to protect the free flow of news, not the activities of a certain class of professionals. Still, the express mention of "blogs" as a medium ought to be included. Judges are not necessarily savvy when it comes to the latest technology, so it's probably better not to leave it to them to decide whether the statute is meant to apply to blogs. Just state it outright, and take it out of their hands.
Regardless of the wording details though, Senator Duane and Assemblywoman Rosenthal deserve to be commended for taking this particular bull by the horns. It's nice to see a little legislative forethought regarding the protection of bloggers, especially given the apparent inability of the judiciary to get it right.
(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)