For citizen journalists, the federal shield law front was looking good for a while. Although the House of Representatives version of the bill, passed in April, only offered a shield to professional bloggers, the Senate version didn't differentiate between the pros and the amateurs. So there was hope that amateur journalists might actually, eventually, get its protection.
No longer though.
Sadly, the Senate Judiciary Committee has followed the path of the House and opted to specify that only a "salaried employee . . . or independent contractor" will be able to invoke the shield, reports the Wall Street Journal's Digits blog. The amendment, offered by Sen. Chuck Schumer (D) of New York, limits the definition of a journalist to one who:
(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service . . .
This language is in fact more restrictive than its House counterpart, which only limits the shield to those who gather or disseminate news "for a substantial portion of [their] livelihood or for substantial financial gain." The Judiciary Committee's "salaried employee . . . or independent contractor" language on its own would be sufficient to deprive most non-traditional journalists of protection. But the requirement that the hosting entity both disseminate information by electronic means and operate a publishing, broadcasting, or news service of some kind ices it. It's hard to imagine that many amateur bloggers (even those eking out enough money to pass the employee hurdle) would qualify as "a news agency." Perhaps a blog dedicated to news and adhering to journalistic standards could be read to be "a news agency," but I wouldn't want to rely on a judge making such a reading.
Clearly, this is disappointing. Interestingly enough, it's a bipartisan foreign policy think tank, the Partnership for a Secure America, that offers the most succinct summary I've read explaining why the shield law should cover amateur journalists. John Eden writes for the PSA's blog:
In an era of instantaneous dissemination of information over the Internet by bloggers and other part-time pundits, it’s hard to see why the privilege should be limited to journalists who are getting paid to collect news. If what we care about is getting the most up-to-date, accurate information, why should it matter whether a blogger or a CNN reporter has delivered the news to us? Moreover, even if a meaningful distinction can be made between commercial and non-commercial journalists, in practice granting the privilege exclusively to commercial journalists is likely to spur costly, unnecessary disputes about who is or isn’t a bona fide journalist.
Amen. Of course, a cynical fellow might suggest that perhaps the Senate isn't so concerned about people getting "the most up-to-date, accurate information." But I think it's far more likely that citizen journalists just aren't on the radar of your average senator. In the media whirlwind that is Washington, the only media that a Beltway insider is apt to recognize is the big, powerful corporation. And blogs are just places that publish dirty little secrets or partisan ranting. The idea that unpaid bloggers can actually provide legitimate journalistic services is just an alien concept.
So, it looks like the feds aren't going to come through, and citizen journalists will have to look to their own states and to the judiciary for shield law protections. Because the states have been better about passing shield laws generally, it might not be too much to hope that they'll be better about applying them to unpaid journalists. Maybe they'll even write bloggers in explicitly. But for now, citizen journalists will have to continue their efforts with considerable uncertainty about shield law protection.
(Arthur Bright is a 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.)