THE BLOG
08/13/2013 02:22 pm ET | Updated Oct 13, 2013

Federal Media Shield Law Should Extend to Unpaid Bloggers and Citizen Journalists

The United States Senate is currently considering the Free Flow of Information Act, a federal media shield law that would protect journalists and media organizations from revealing the identities of their confidential sources. It's the third time that Congress has considered such a federal shield law. They met two weeks ago on the issue, but needed to postpone the matter until after the August recess.

The main sticking point is trying to define who a journalist is.

The bill currently defines it as a person "with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national or international events or other matters of public interest," collects the information by conducting interviews and directly observing events, and has the intent of gathering news. The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.

One of the troublesome aspects of the bill is an amendment proposed by Sen. Dianne Feinstein, D-Calif., and co-sponsored by Sen. Richard Durbin, D-Ill., which "defines a journalist as a salaried agent of a media entity," such as a newspaper, broadcast news station, news website or another type of news service distributed digitally. There is also a "look back" option to protect legitimate reporters not tied to a specific news organization. Feinstein said, "This bill is described as a reporter shield law -- I believe it should be applied to real reporters." She was also concerned "that the current version of the bill would grant a special privilege to people who aren't really reporters at all, who have no professional qualifications."

Sen. Charles Schumer, D-N.Y., co-sponsor of the bill, objected to Feinstein's definition, stating that bloggers and others don't necessarily receive salaries:

"The world has changed. We're very careful in this bill to distinguish journalists from those who shouldn't be protected, WikiLeaks and all those, and we've ensured that. But there are people who write and do real journalism, in different ways than we're used to. They should not be excluded from this bill."

Forty-nine states and the District of Columbia have shield laws or precedents protecting confidential sources, but the federal government does not.

Under Feinstein's definition, an unpaid blogger for The Huffington Post might not be eligible for the shield law privilege, even though the site is one of the top 10 news sites in the country with more than 20 million readers per month. Bloggers and website operators like Nate Silver, Ana Marie Cox, and Bill Simmons wouldn't have been protected when they were blogging on their own, but once they were hired and started blogging for the New York Times, The Guardian, and ESPN, respectively, they would be protected. In light of massive newspaper layoffs, how about former reporters who start reporting and interviewing sources on their own unpaid websites and blogs? What about people who self-publish nonfiction books that contain interviews from sources? What about student newspapers at universities and high schools that want to engage in investigative journalism? There is also a rise of citizen journalism, where average people are muckraking and reporting news. It's common sense to believe that many bloggers are trying to become a modern-day Thomas Paine.

Earlier this year, a New Jersey Superior Court judge ruled that a blogger, Tina Renna, was entitled to protection under the state's shield law, because she had a connection to news media, her purpose was to gather or disseminate news, and she obtained her information through professional news-gathering activities. Renna was a self-declared citizen watchdog who wrote stinging, partisan, and snarky critiques of Union County government on her countywatchers.com website. Courts in California and New Hampshire have extended shield law protection to new media outlets, including bloggers. In a 1987 case involving eligibility to a reporter's privilege, von Bulow v. von Bulow, the Second Circuit court emphasized the intent or purpose to disseminate information to the public during newsgathering, as opposed to the medium of doing so.

Many people still have the stereotypical notion of the blogger as the pajamarati, typing and ranting away in their parents' basement. While there is a lot of ranting and raving in the blogosphere, many bloggers and website operators do engage in real reporting. While many bloggers rely on the mainstream media for information, many mainstream media reporters often rely on and cite blogs and websites for their information to aid their own reporting. Many bloggers and website operators are now granted press passes to cover political conventions and sporting events, among other things. The determination of whether a blogger or website operator is a journalist should be made on a case by case basis.

The definition of who is a journalist or reporter should be interpreted broadly in light of the changing media landscape. The writer's intent and activities should be considered, not whether the writer is paid or affiliated with a news organization. Shield laws should not just extend to paid reporters from mainstream media outlets, but should extend to unpaid bloggers engaged in reporting as well.