Bloggers in federal shield law headed to Senate floor

Last week, the Senate Judiciary Committee sent to the Senate floor a version of the Free Flow of Information Act that appears to include bloggers.

Briefly stated, a shield law protects journalists from having to disclose sources to prosecutors unless certain requirements are met. One of the battles to date is who would be protected by a federal shield law. At one point, the Senate version of the bill was amended so as to protect only those working for the mainstream media. Last month, the committee adopted language that renders it applicable to certain bloggers. The three part definition of a “covered person” says the bill will apply to anyone who (1) “with the primary intent to investigate events and procure material in order to disseminate” news or other matters of public interest and “regularly” does so, (2) had that intent from the inception of gathering the information and (3) and obtained the information “in order to disseminate it[.]” Although the amendment does not define “regularly,” that is something that could be decided on a case-by-case basis rather than excluding all bloggers.

Last Thursday, by an 11-8 vote the committee defeated an effort by Senate Majority Leader Dianne Feinstein and Democratic Sen. Dick Durbin of Illinois to return to a mainstream media-type definition. Their proposal would have required a person be acting “for substantial professional gain.” That term, in turn, was defined as a student working for a college publication or an employee, contractor or agent of an entity that disseminated the information through newspaper, nonfiction book, wire service, news agency, magazine, “news website, or other periodical” or television, radio or motion pictures. While “other periodical” was not defined, the other items in that list would seem to indicate blogs would not be considered a periodical.

After rejecting the amendment, the committee adopted the the blogger-friendly bill by a vote of 14-5. In announcing the bill had come out of committee, Sen. Charles Schumer (D.-N.Y.) noted that “it also provides the potential for journalists publishing on blogs to be covered as well.”

When and if the bill will be debated on the Senate floor is anyone’s guess, as is whether it would pass in the current form. Even if it does, the House version of the bill requires that an individual’s work in journalism must account “for a substantial portion of the person’s livelihood or for substantial financial gain[.]” If and when the two versions are ever reconciled, the law would apply only to federal authorities, not state and local ones.

Some blogs have become the best check on monopoly mainstream journalism, and they provide a surprisingly frequent source of initiative reporting.

Harold Evans, WSJ, July 14, 2007

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