Congressional proposals differ over whether bloggers are journalists

The question of whether bloggers are journalists is raised indirectly by differences in legislation introduced this month in the U.S. House and the U.S. Senate to provide certain legal protections to journalists.

Both bills call themselves the Free Flow of Information Act and seek to create a federal “shield law.” Broadly speaking, shield laws protect reporters from having to disclose confidential or unpublished information in response to subpoenas or court orders unless certain conditions are met. It has been an ongoing debate for several decades and the advent of blogs adds another layer to the debate.

The House bill applies to efforts to obtain testimony or documents from “a covered person” that is related to information that person obtained or created “as part of engaging in journalism.” The bill defines “journalism” as “the 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 definition of a covered person is similar but contains significant qualifiers: their journalism work must account “for a substantial portion of the person’s livelihood or for substantial financial gain[.]” Although the term “substantial” is not defined, it would seem to exclude the average blogger.

The Senate bill takes a broader view. Although it has a similar definition of journalism and defines a “covered person” as someone “who is engaged in journalism,” it contains no language about the income generated by those activities. While does require the activities be “regular,” implying they are engaged in more than infrequently, it would arguably allow anyone who routinely uses a blog to report or publish information about events and matters of public interest to invoke the law.

I have mixed feelings, part of which stem in part from semantics from having worked as a professional journalist. I don’t believe what I do here or what you see on most blogs is “journalism.” From that standpoint, I can understand the reasoning behind the House approach. At the same time, since I handled the case that recognized a “reporter’s privilege” in South Dakota, I understand the importance of the concept. Moreover, some bloggers are, in fact, gathering and publishing information on matters of public importance. The fact they do so for little or no recompense shouldn’t deprive them of protection.

To a certain extent, any debate created by the bills is relatively limited. Even if the Senate version passed, the law would apply only to federal authorities. It would not preclude state and local authorities from seeking such information if the state has no shield law or its shield law is drafted in such a way as to potentially exclude bloggers. Yet to the extent blogging has led to a debate over classification or the legislation would set a standard or example for the states, the ongoing discussion is important.

With mass communications concentrated in a few hands, the ancient faith in the competition of ideas in the free marketplace seems like a hollow echo of a much simpler day.

Kingman Brewster, Jr., Time magazine, Sept. 26, 1969

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