How politicians weakened a legal shield for bloggers

The House of Representatives' vote on Tuesday for a journalist shield bill is a timely example of how legislation can be watered down surprisingly quickly.

Originally the proposed shield law gave a broad immunization to journalists, including bloggers who acted as journalists. But eventually it morphed into a far less protective form.

Here's the progression:

#1 Original version:

The term "covered person" means a person engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

#2 Second version approved by a House committee:

The term "covered person" means a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

#3 Third version as approved by the full House:

The term "covered person" means 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.

The original version was reasonably protective, and the term "engaged in journalism" was reasonably well-defined. But by the time our esteemed elected representatives got finished with it, a serious blogger who breaks news (but doesn't have Google Ads on his site) would not benefit from the shield. It requires "substantial" income, even though not all good journalism is done for significant financial gain.

By the way, all versions of the shield legislation are pretty milquetoast when it comes to actually protecting journalists. They say that journalists can be ordered to the witness stand as long as a judge thinks their testimony may be "essential to the investigation or prosecution or to the defense against the prosecution," which is not that significant a hurdle in practice.

I know this firsthand. The U.S. Department of Justice served me with a subpoena to testify in a criminal case in Tacoma, Wash., and then demanded that the judge declare me a hostile witness when I refused to answer certain questions. Even the weakened, final version of the House bill is better than nothing, but I fear it'll prove to be a very thin and easily circumvented shield in practice.

[cmcmanis]

The real question is what did they fear?

So commentary like this is all well and good but without the debate that went along with it you cannot know what the politicians were protecting against. <br /><br />In the first instance I'm sure someone said "So anyone can claim to be a journalist and protect themselves from being compelled to testify?" Probably not a good idea as then everyone would be a journalist wouldn't they? <br /><br />So the second one clarifies that you have to be covering stuff for at least some financial gain, and/or your livelihood. That narrows the definition down to people who can demonstrate that they actually *are* a journalist (used to be working for a news organization had you covered but we all know that doesn't work now).<br /><br />Finally in the third version the question of 'engaged in journalism' wasn't clear to most readers of the bill and so they explicitly put into the bill what 'engaged in journalism' meant. This is the Congressional equivalent of replacing the pronoun 'they' or 'it' with the proper noun that had appeared earlier in the sentence. <br /><br />Clearly one of the hazards of any bill is making it overly broad which, when it comes to journalists, often causes it to die a first amendment death. <br /><br />So I throw the question back at you Declan, if you agree that you use the term 'weakened' in place of the more descriptive 'narrowed', who do you think was excluded in the presumably final version?<br /><br />--Chuck

[Surturon]

Wheat from the chaff...

Very sound analysis, and a good ending question, Chuck. Journalists have always been a protected class in this society, and this does nothing to alter that. But in the wake of all the bogus reporting, articles whose author never left a hotel room, etc., I think it's important to separate a professional from someone whose only interest is libel and slander with the protection of anonymity.

[declan00]

final version

It's a fair question. I wrote an article that answers that question (at least I think it's a sufficient answer) a few years ago:<br /><a class="jive-link-external" href="http://www.news.com/2010-1071_3-5601664.html" target="_newWindow">http://www.news.com/2010-1071_3-5601664.html</a><br /><br />That's the definition I'd use. Anything else isn't protective enough, or in your words, would be overly narrow.

[bjdooley]

Well, sort of...

Actually, one can see that the major change is that the lawyers have had a look at it. The first definition was NOT at all clear in that an attorney could easily argue that anyone posting anything was a "journalist". So it needed clarification. The final version is very specific. True, it may be more restrictive than many would wish, but then, it clearly spells out the intent of the legislation. If one requires more protection, one must lobby for another bill--one that protects Joe the Casual Blogger, for example, from specific threats.

[declan00]

specificity isn't wonderful by itself

Well, specificity is overrated in situations like this. We live in a common law country, not a civil law one, and case law will clarify.<br /><br />The more important issue is that the shield law (a) doesn't cover everyone it should and (b) is too weak to help the people it does cover very much.

[tasiyagnunpa]

What does this mean for podunk bloggers like myself?

How does this affect our right to free speech? My progressive Christian politics blog is mostly opinion. Was this bill a legal shield mostly for those covering current events in a journalistic manner rather than opinion?<br /><br />Tasi<br />thelordslark.blogspot.com

[suyts]

What it means is

that you are still protected by the 1st admendment but that you cannot libel/slander individuals. You must have proof. You cannot hide behind "unnamed" sources and expect not to be sued or jailed. As you well know, in the anonymous world of blogging, anyone can and does spew any venimous thing they wish. Now some want protection for it. Strangly enough, congress seems to have it right for once. <br />Legit cyber-journalist, maybe they should have some shield, maybe. Crack smoking liars that know how to turn on a computer, no.<br />It would be nice/fantasy if we could decide to descern truth from opinion when writing and to jail those that purposfully slander/libel other people.

[ewelch]

History

Looking back on the history of journalism, back to the day's of <br />Ben Franklin and beyond, there is no way the government has <br />the right to determine who is and isnt' a journlaist. That is prior <br />restraint and it is not constitutional. I sure hope our "strict <br />constructionist" supreme court can do the right thing and strike <br />down such nonsense as trying to define the term journalist as <br />narrowly as possible. <br /><br />A rich, healthy debate can only take place where the marektplace <br />of ideas is free to operation without stupid government offiials <br />disapproving the words of people they find distasteful.<br /><br />As for prosecutors can go on fishing expiditions through <br />journalists' notes is ao anti-American I can't believe any <br />competent lawyers will think they can get away with it in the <br />long run.

[ewelch]

sheesh

I was so mad I couldn't spell worth diddly.<br /><br />"Once I couldn't spell journalist, now I are one!" :-P

[mikestroud]

Great piece...My take

I wrote a blog entitled the Fifth Estate some months arguing that citizen journalists represented a Fifth Estate: Executive, Legislative, Judicial, Media and Citizen Journalists, which I dubbed cloggers. Thought you might enjoy the blogs: The Fifth Estate, <a class="jive-link-external" href="http://news.ihollywoodforum.com/public/item/162476" target="_newWindow">http://news.ihollywoodforum.com/public/item/162476</a> and Imus vs. the Cloggers, <a class="jive-link-external" href="http://news.ihollywoodforum.com/public/item/166218" target="_newWindow">http://news.ihollywoodforum.com/public/item/166218</a>

[sblservices]

Good , informative post...<br />Regards,<br />&lt;a href="http://www.saibposervices.com/"&gt; SBL Bpo services&lt;/a&gt;