Both houses of Congress are still considering legislation to create a federal “reporters privilege,” legislation that took different approaches for bloggers. At bottom, the difference was whether someone had to earn an income from blogging to be protected by the law. Now, an amendment in the Senate Judiciary Committee would not only abandon the Senate’s original position that deriving income from blogging didn’t matter, it would essentially exclude from protection any bloggers who aren’t working for the mainstream media.
A shield law basically protects reporters from having to disclose confidential or unpublished information in response to subpoenas or court orders unless certain conditions are met. The House version of the Free Flow of Information Act, which passed on a voice vote in March, requires that an individual’s work in journalism must account “for a substantial portion of the person’s livelihood or for substantial financial gain[.]” The Senate version, however, required only that the activities be regularly engaged in. Once the bill reached the Senate Judiciary Committee, Sen. Charles Schumer (D-NY), a co-sponsor of the Senate bill, offered an amendment that radically changes the definition of a journalist. Under the amendment, a “journalist” is someone who:
(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service . . .
Plainly, someone who blogs as an employee of the New York Times, Entertainment Tonight or a South Dakota media outlet would be protected. But the “and” at the end of paragraph (I) makes clear that someone like Cory at The Madville Times would not. Whether that is a legitimate distinction is something apparently reasonable persons can differ on and legitimately debate for hours.
If the amendment survives and the bill is approved by the Senate, that doesn’t mean it will become law as it would differ from the House version. Moreover, this law would apply only to federal authorities. Cory and others may need to see what a South Dakota shield law would say — that is if the news organizations in the state who support such a measure consider bloggers worthy of the same protection.
Where the Internet is about availability of information, blogging is about making information creation available to anyone.
George Siemens, “The Art of Blogging“