Posted October 5, 2007 4:57 pm by with 6 comments

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In August, the House was hard at work on a federal journalist shield bill—that extended to advertising-supported bloggers. On August 1, the three-month-old bill was ordered to be reported with its amendments for voice vote. (That means it’s on the schedule to be voted on by the Whole House, but was amended and passed its committee.)

The Senate is now acting on the federal shield bill. First introduced September 10, the bill has already passed its committee and is in the same position as the House’s version. CNET reports that the Senate bill’s broad definition of journalism includes:

the regular 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

The “Free Flow of Information Act,” as it has been called, will still be some time in the works. Both versions of the bill will include numerous exceptions to these journalistic privileges. The bill was sponsored in the House by Rep. Rick Boucher, D-VA (with 71 cosponsors). In the Senate, the sponsor is Sen. Arlen Specter, R-PA, with Sens. Christopher J. Dodd, D-CT; Lindsey Graham, R-SC; Richard D. Lugar, R-IN; and Charles E. Schumer, D-NY cosponsoring.

If the bill does eventually pass, there’s a chance that President Bush, whose administration opposes the bill, may veto it. However, Bush has only vetoed four other bills during his 6+ years in office, so odds are good that he would sign it into law.

A quick constitutional lesson: the First Amendment guarantees the right to print whatever you like. The federal shield law is designed to help strengthen this amendment by reducing the chilling effect that would be created if journalists were forced to reveal anonymous sources to law enforcement agencies. There is no provision in the Constitution itself for this.

However, there is legal precedent against shield laws. In Branzburg v. Hayes (1972), the Supreme Court ruled that reporters do not have a constitutional right against divulging sources who wished to remain anonymous, although the government needed to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest” (ref).

Supreme Court decisions are the ultimate authority on the meaning of the Constitution. If the First Amendment doesn’t automatically provide for journalists to protect their sources, a federal shield law is absolutely necessary to give journalists that privilege. The question remains, however, if the Supreme Court will let the law stand.

  • Bloggers seem to be doing well without such a shield so far! In fact, blogging may take different shapes if this passes into law. Moreover, the implications for non American bloggers will be the same as it stands now for quite some time.

  • A couple of thoughts came to mind while reading this.

    First what’s the definition of a journalist? What are the criteria that need to be met in order for a journalist to be granted protection from having to reveal a source? Is there anything in those criteria that require the published material to be in print as opposed to online?

    If tomorrow the New York Times decided to stop publishing a printed paper and instead decided that all material would be online in the form of a blog. Would all the current journalists cease to be journalists because their words were now published on a blog?

    Second it strikes me that the intent of the laws are meant to protect the source. The journalist gains protection so as to be able to protect their source. Why should it matter that a person needs to meet certain criteria in order to be able to protect sources and ultimately a free press and free speech?

    I assume the criteria is in place so you can’t fall back on an anonymous source to publish a fabrication.

    Bloggers come in many forms. Some are journalists and some aren’t. What I’m having a hard time seeing is why a blogger can’t meet the requirements to grant the protection. Not all would, but are any of the requirements granting protection tied to the media in which a story is published?

  • They want to oblige people to reveal their sources, does this include a link to the original author’s site? 😛

  • Jordan McCollum

    @Steven—I think a number of those concerns are addressed by the law. It gives a definition of journalism which says nothing about featuring a printed version. Journalists, then, would be people who engaged in journalism.

    As discussed after the first bill, there has to be some standard to prevent people from simply throwing up a blog to publish information (which is only really of interest when it harmful and/or incriminatory) and receive automatic shielding.

    The advertising standard (blogs must be supported by advertising—just like virtually all newspapers, magazines and other media, online and off-, already are) is in place to try to curb that.

    This law has nothing to do with the freedom of the press or freedom of speech. No law will stop you from publishing anonymous comments from someone who didn’t wish for you to divulge his/her name.

    Thirty-five years ago the Supreme Court ruled that the freedom of the press explicitly does not mean that you are exempt from ever divulging your sources. There is no Constitutional protection for keeping sources secret.

    The point of both bills is that they DO include bloggers specifically. This is a huge step forward, since it would probably take years and rounds of court battles to make sure that the law extended to bloggers otherwise.

  • Thanks Jordan for the further clarification. That’s what I suspected about a definition of journalism.

    I agree completely about the need for a standard. The law isn’t meant to be a shield for anyone to hide behind. I’d question if advertising should be the standard, though. I would think you could be a journalist without making direct revenue from your blog. Would the advertising standard eliminate those who indirectly earn money from their blog. Say a journalist blogs freely in order to secure a book deal or a position at a paper.

    I am glad to see bloggers are covered by the new laws. The determination for who does and doesn’t get protection shouldn’t be the media in which they publish.

  • Jordan McCollum

    Re: the advertising standard. People have jumped all over that phrase, but I’m pretty sure it’s just a “financial gain” standard.