Congress moves forward on shield bill details

From the Fall 2009 issue of The News Media & The Law, page 7.

At the close of October, after much negotiation between media advocates and the Obama administration, a version of the federal shield bill is in place that would, if passed, permit anyone who gathers information for the purpose of disseminating it to the public to be protected by a reporter’s privilege.

The advancement of the Free Flow of Information Act (S. 448) through Congress has shown how slight tweaks to the wording of legislation can fundamentally change its intention. In this case, defining who qualifies as a “covered person” could be the difference between keeping a promise of confidentiality or going to jail.

One of the most debated aspects of any shield law is defining who will be shielded, and there is still no uniform, clear definition among state shield laws. But the increasing legitimacy of online journalism by independent web sites highlights why the debate is important.

The most significant changes to the shield legislation occurred this fall when the Senate Judiciary Committee adopted an amendment during a meeting in mid -September. Sen. Chuck Schumer, D-N.Y., one of the bill’s sponsors, introduced language that redefined who would be covered under the bill as a “salaried employee of, or independent contractor for,” a media company, or one who operates such entities.

The Schumer change was offered in the form of a technical amendment, which are usually limited to cleaning up language or fixing errors in drafting. But one small shift made major waves — online journalists that are unsalaried, for example, would have been excluded under this definition.

“The problem here is that those very ad hoc citizen journalists are, more and more, beginning to fill the reportage vacuum that’s expanding as newsroom budgets contract,” wrote Jason Linkins for the Huffington Post in response to the change.

Thanks to media advocates’ continuing insistence that journalists should be defined in the broadest possible sense, they reached a middle ground with the White House and the Department of Justice. The requirement that a journalist be a salaried employee has been eliminated in the pending legislation.

“The negotiated compromise creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants,” Specter said in a statement.

Shield laws exist to protect reporters from being compelled to reveal confidential sources and newsgathering materials in the face of subpoenas from the government and other litigants — the rationale being that if journalists were forced to offer up sources in response to subpoenas it would hamper the newsgathering process and decrease the public’s access to information. But the salary-based definition of the federal shield law would have left many individuals vulnerable.

“Many bloggers, student journalists and even those who freelance for magazines or papers that pay poorly, could have a hard time utilizing the protections afforded by the bill, should this version become law,” Michael Lindenberger, a reporter for The Dallas Morning News and TIME.com and a guest blogger for the Citizen Media Law Project, wrote regarding this type of definition.

Most shield law advocates prefer the current legislation’s approach of defining journalists by their function — whether their activities are journalistic in nature — and not by who signs their paycheck. This approach is similar to one developed in the 1987 case von Bulow v. von Bulow, when the U.S. Court of Appeals in Manhattan (2nd Cir.) determined that for the journalistic privilege to apply, “an individual claiming the journalist’s privilege must demonstrate, through competent evidence, the intent to use material sought to disseminate information to the public and that such intent existed at the inception of the newsgathering process.”

As the line blurs between electronic and traditional journalism, sometimes vital information is exposed by the unexpected sources and thus demonstrates the need for an expansive definition. For example, Talking Points Memo’s Josh Marshall joined the prestigious ranks of George Polk Award winners, which include Edward R. Murrow and Walter Cronkite, for reports on the Bush administrations politically motivated firing of U.S. attorneys. Online-only nonprofit news Web sites like the Center for Public Integrity and ProPublica have sprung up to create investigative reports. Though the journalists in these newsrooms would be have been covered by the employer-centric revisions, others at smaller startups who work without pay would not have been.

Even the Pulitzer Prize, the grandfather of journalism awards that has honored journalists since 1917, has changed its definition of eligible publications. Now, media organizations can submit pieces if they “publish at least weekly . . . are primarily dedicated to original news reporting and coverage of ongoing stories . . . and adhere to the highest journalistic principles.”

On a state level, the parameters of shield laws run the gamut from restrictive to open, with many of the 37 states and the District of Columbia falling somewhere in between. The wording of statutes can make or break a journalist’s claim of privilege. Alabama’s shield law, for example, specifically protects those working “on behalf of a newspaper, radio station or a television station.” Alabama courts in 2003 declined to apply the statute to help a magazine, Sports Illustrated, defend itself in a libel suit filed by Mike Price, a former University of Alabama football coach. A state senator introduced legislation to amend the law but it has not yet passed.

Florida defines journalists by employment, as a person who writes or edits “for gain or livelihood.” Florida’s also specifically excludes “book authors and others who are not professional journalists.”

Some states — like Iowa — lack a shield law, but have extended a reporters privilege to unsalaried journalists through the court system. In the 1990 case of Stanfield v. Polk County, an Iowa trial court used the von Bulow functional standard to extend the privilege to a freelance writer.

Others, including Georgia, Hawaii and Louisiana, have expanded the protections in statutory language to include nontraditional journalists like nonfiction book authors, cable access show producers, and documentary filmmakers.

As more cases crop up over whether online news qualifies as journalism, state courts are applying the privilege even when it is not defined to encompass nontraditional journalists explicitly. A California appellate court in the 2006 case O’Grady v. Superior Court applied the state’s privilege to authors of a Web site about Apple computers, stating that “the shield law is intended to protect the gathering and dissemination of news and that is what [the bloggers] did here.”

Gene Policinski, director of the First Amendment Center in Washington, D.C., noted in an October 2009 column that the colonial British practice of requiring publications to obtain licenses from the crown prompted our nation’s founders to purposefully not define or limit the word press.

“We should keep in mind that the more adjectives or definitions we add to the ‘press’ part of ‘free press’ today, the more we risk inadvertently subtracting from the ‘free’ part tomorrow,” Policinski wrote.