Some bloggers are alarmed by a law recently moved forward by the Senate Judiciary Committee. Ironically, this law would actually protect them.
The shield bill, which is called the “Free Flow of Information Act,” would create a new federal privilege for reporters to protect confidential sources. Forty-nine states have long had laws like this on the books or in their case law.
Nevertheless, the act is “an attempt to carve out certain types of journalism that Congress is uncomfortable with,” TechDirt claimed. GigaOM called the law “a terrible idea” that allows the government to define who is a journalist and who isn’t. And Matt Drudge tweeted:
Well, no. The bill does protect bloggers, which is why the Online News Association supports it. To figure out how the law would really work, take a look at the language of the definition itself — which includes two separate tests, and one safety valve.
Under the first test, a reporter can be covered if she works for any entity that publishes “news or information” by means of a variety of media. There is no “financial” test involved. Those media include any “news website, mobile application or other news or information service” as well as a “magazine or other periodical, whether in print, electronic, or other format,” which is language that courts have held to encompass blogs.
True, the blogger at issue would have to be practicing journalism – which is the test that bloggers seem to prefer. “Congress should link shield law protections to the practice of journalism as opposed to the profession,” writes the Electronic Frontier Foundation’s Morgan Weiland. If a blogger needs to protect a confidential source, she’d probably already be “conducting interviews, making direct observations of events,” or at least “analyzing…statement…or reports.”
But even if someone doesn’t qualify under this liberal test, there is a second, entirely separate test. (You only have to satisfy one or the other to be covered.) Under the second test, someone who doesn’t qualify under the first can be covered if she is a student journalist, someone who has significantly contributed to any medium covered under the first test, or someone who would have been covered under the first test for at least three months in the past five years — or, for real boomer second-generation journalists, at least a year in the past twenty years.
Finally, there’s a “safety valve.” The bill empowers anyone who fails either test to still be considered a covered journalist if “the judge determines that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.” In other words, a judge is empowered to do justice.
Will this definition lead to Congress “licensing” journalists? This argument has been around for decades. But so have other definitions of journalists, none of which has ever led to “licensing.” The Freedom of Information Act defines “news media,” forty state shield laws define “journalist,” and Congress and the White House routinely define “journalist” to decide who can attend press events. None of these definitions have led to “licensing,” which would be easily struck down under the First Amendment.
Some claim that anyone at all should be considered a journalist. But under this bill, anyone can be covered as a journalist, as long as the writer is actually committing journalism. Those who claim anyone at all must be covered are really suggesting a poison pill to kill any privilege. It’s naïve to suggest that Congress would pass a privilege that applies to everyone.
Those who argue that the bill would violate the First Amendment ignore the fact that the courts have already decided that the First Amendment doesn’t stop prosecutors from jailing reporters who refuse to divulge confidential sources. The New York Times‘ Jim Risen is in imminent danger of being imprisoned after a recent Fourth Circuit case held that he has no First Amendment privilege at all. This law would prevent decisions like the one affecting Risen, and would have prevented the massive Justice Department subpoena against the Associated Press and the equally invasive subpoena against James Rosen of Fox News.
Most importantly, the bill would protect our right to receive reporting based on confidential sources.
The right step is not to resuscitate tired, old arguments about licensing and narrow definitions. The right step is to pass the bill and keep our journalists — including bloggers — on the front lines and out of jail.
Kurt Wimmer is general counsel for the Newspaper Association of America and a partner at Covington & Burling. Follow him on Twitter @kurtwimmer.