Speaking at a Center for Democracy and Technology gala last week, Rep. Rick Boucher, D-Va., predicted that federal shield legislation he introduced in February would pass the House and Senate this session.
The bill, H.R. 985, would protect reporters from being compelled to reveal confidential sources even under subpoena. It currently has 40 cosponsors, including Reps. Mike Pence, R-Ind., John Conyers, D-Mich., and Bob Goodlatte, R-Va. An identical bill passed the House during the 110th Congress, but the Senate never considered it.
In order to protect journalists, however, someone first has to decide who qualifies -- no easy task in the fast-evolving new media marketplace. Boucher's office noted that 36 states and the District of Columbia already have statutes protecting reporters, but the laws use varying standards and some require journalists to work for a newspaper or a radio or television station.
"We have to be very careful of enshrining in legislation today a view of technology that doesn't take into account that technology changes," said David Ardia, director of the Citizen Media Law Project at the Berkman Center for Internet & Society at Harvard. "We are also faced with the situation today when journalism and journalism institutions are undergoing tremendous change, and the way we have defined who is a journalist" is changing as well, he added.
The Seattle Post-Intelligencer, for example, this week stopped printing a paper edition and is available only via the Web. President Obama, in his first news conference from the White House, took a question from a reporter for the Huffington Post, an online-only source of liberal-leaning news that also routinely publishes stories written by celebrities and notable politicos. Under some laws, reporters from neither publication would qualify for protection.
Kathleen Bergin, an associate professor at South Texas College of Law, said legal protection for journalists depends on how lower courts have interpreted state statutes. The scope of state laws range from protecting only paid journalists to being "broad enough to encompass who is investigating facts for a possible future publication."
In Boucher's legislation, "journalism" is described as "gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public." So a journalist is someone doing any of those tasks "for a substantial portion of the person's livelihood or for substantial financial gain."
Boucher told NationalJournal.com that some bloggers will meet that threshold, since they earn money from advertisements or subscriptions. Still, many will not. The arrest of video blogger Josh Wolf, who was sent to jail in 2006 for refusing to hand over footage from a protest to police, raised awareness about the need to define who exactly is protected by shield laws. He probably would not qualify for protection under the proposed law, according to Ardia.
That's because Boucher said he wrote the definition to serve a narrow purpose: "A person should not be able to avail himself from the privilege to refrain from testifying simply by declaring themselves to be a blogger."
Goodlatte added in a statement that, "A lot of time and effort were spent on the question of who should be provided protection under the Free Flow of Information Act. While the limits to the definition of a journalist are not perfect, they do serve an important function and represents a good faith effort to prevent a nefarious person from, say, setting up a blog for the purpose of leaking sensitive information in order to get the protections of the bill."
Neither the Newspaper Association of America nor the Society of Professional Journalists appear totally satisfied with the bill's language, but Ardia and other supporters of greater protections for journalists agree it's better than nothing. After all, every journalist today receives zero protection if subpoenaed in federal court or if located in a state without a shield law.
The Newspaper Association of America has led a coalition of groups pushing for the new federal law. John Sturm, the group's president, said its purpose is "first and foremost" to "continue the free flow of information to the public that may come from confidential sources and to protect those sources from disclosure and from those journalists for having to go to jail in federal cases." Sturm said that "if the definition is not absolutely perfect, then the courts' job could be to interpret that in the future."
Edwin Baker, a professor at the University of Pennsylvania Law School, said in an e-mail that he too favors a broader definition of a journalist. If courts eventually take up this question, Baker said, lower courts have offered answers in various contexts. But the Supreme Court has tried to avoid defining the press.
California media lawyer Karl Olson, who also pens a blog on the First Amendment, said the "Supreme Court really hasn't squarely confronted the issue since Branzburg." In the 1972 case of Branzburg v. Hayes, the court concluded that the First Amendment does not "relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena." Under the federal legislation, Olson would not receive protection if he used a confidential source in one of his blog entries and was taken to court. He advocates the broadest protection possible with an emphasis on the medium and not the financial gain earned through that medium.
David Aeikens, president of the Society of Professional Journalists, said his group has been advocating for the legislation and has a number of First Amendment lawyers in Washington "that aren't registered lobbyists that stay in touch with Congress and stay on top of the Hill and make sure they have the right information."
Aeikens said it is important that journalists have protection in federal court right now but acknowledged the difficulty in defining the practice. "Our preference is to have a broad definition of journalists," he said. "We are afraid that if you have too narrow of a definition or if you have a definition it is the first step to have the government defining what a journalist is. The next step would be the licensing of journalists, and we would be opposed to that."