OJR spoke with Dalglish about the heightened concern she sees from both journalists and the public about the culture of secrecy that has pervaded many parts of our government, as well as the status of a proposed federal shield law for journalists and some bloggers and a bill that its advocates say would improve administration of freedom of information regulations.

The beginnings of RCFP’s “secrecy beat”

OJR: Even before attacks of September 11, the Bush administration displayed a rare penchant for secrecy.

Dalglish: Right. [Attorney General Alberto] Gonzales, when he was the White House Counsel, tried to gut the Presidential Records Act [PRA], to essentially make it meaningless. There was the [former Attorney General John] Ashcroft memorandum interpreting the Freedom of Information Act. They were working on that well before 9/11. There was the Cheney energy task force meetings that they tried to put off-limits. They were pre-disposed to secrecy even before 9/11.

[Note: In June, 2007, the House Committee on Government Oversight and Reform issued a report alleging that senior Administration officials might have violated the PRA by using e-mail addresses assigned by the Republican National Committee to conduct official government business.]

OJR: How did journalists react to that predisposition toward secrecy in the very beginning?

Dalglish: Indifferently.

OJR: Indifferently? They didn’t see it as a real problem?

Dalglish: No, they didn’t see it as a real problem. They were caught unawares and they always thought, “Oh, we’re the only ones who care about that. Journalists are the only ones who care about that, so why even bother to report it?”

OJR: After 9/11, at what point did journalists get concerned. Was it the passage of the PATRIOT ACT?

Dalglish: Well the PATRIOT ACT doesn’t have much to do with information policy. And quite honestly, from my perspective, many of the things in the PATRIOT ACT are absolutely fine and absolutely necessary.

There were a number of things that happened after 9/11 that did impact the right of the public to know what was going on, but it wasn’t necessarily the PATRIOT ACT. I can really only think of one major area of concern in the PATRIOT ACT, and that’s section 215, which said that you could try to get tangible business information from any entity, and then, the librarians and the bookstore owners went nuts.

And we found out from the Attorney General that they were convinced that despite the Privacy Protection Act of 1980 that said you could not execute a search warrant on a newsroom, that because 9/11 was so special that the PATRIOT ACT would allow those search warrants to be executed on newsrooms.

OJR: Has anybody tried to do that?

Dalglish: No, not that I’m aware of.

OJR: There was information that had previously been public that suddenly got taken off-line after 9/11.

Dalglish: Yes. And there were rules that were implemented, executive orders that were written, there was laws that Congress did pass. For example, the law that creates the Department of Homeland Security exempted DHS from portions of the Freedom of Information Act. [RCFP has a detailed chronology of US government secrecy measures between 9/11 and 2005.

OJR: What motivated the Reporter's Committee for Freedom of the Press to start covering these attempts at secrecy as a distinct beat, with reports such as Homefront Confidential and your blog, Behind the Homefront?

Dalglish: The absolute certainty that the public wasn't going to learn nearly as much information as they used to, and that this administration was intent on placing valuable information off-limits.

Growing public support for open government

OJR: Where are we now in the effort to balance the legitimate need for secrecy with the public's right to know?

Dalglish: I think we're starting to bounce back a little bit. I think Congress has finally woken up. I think the media have finally woken up. I think the public is kind of waking up. They're asking very serious questions. I think the [Congressional mid-term] election in November [2006] was partly due to all of this stuff. People are going, “Okay, we gave you enough rope, and you hung yourselves. So know we’re gonna go in another direction.”

And I think the [June, 2007] Washington Post stories about Vice-President Cheney explain the passion for secrecy better than just about anything I’ve seen.

OJR: When you cite the Washington Post stories as a sign that the news media has awakened, are you saying that they haven’t been aggressive enough on these issues in the past?

Dalglish: No, there’s no question the press has not been aggressive enough on these issues. Many reporters have made the mistake of concluding the public doesn’t care about this stuff, and that it was quote-unquote inside baseball. But the public does care about this stuff.

And we’re starting to find out that yes, there is a need to keep some things secret. But when you keep some things secret with impunity, abuses of power occur.

OJR: What evidence do you have that there is widespread concern about this among the public?

Dalglish: I get letters; I get e-mails. Mostly, it’s what doesn’t happen. It used to be when I would go on television or on radio and whine about this, people would call in and say I was an unpatriotic jerk. Now, when I go on these TV shows or on these radio talk shows, people call in saying, “Oh thank God there are people like you! Where have you been?” It’s more of an attitude adjustment, rather than any concrete information I’ve been getting.

I’m not getting as many death threats, let me put it that way.

OJR: You were getting death threats before?

Dalglish: Oh, sure!

Current challenges facing journalists

OJR: How do you feel things stand legally in terms of civil liberties protections for reporters?

Dalglish: They’re chipping away in millions of tiny little ways. They’re trying to close down criminal prosecutions. They’re trying to keep us out of proceedings in Guantanamo. They’re trying to close down access to jurors. They’re trying to prevent us from finding out who it is we’ve kicked out of the country. The foreign nationals that we’ve deported because of some weird, wacky matrix system. They don’t want us to know anything about critical infrastructure, even to the point of ridiculous examples. They won’t even let you know — if somebody’s proposed to build a credit-card processing facility in Texas, and the local folks won’t even tell you what intersection it’s going on, because someone has told them that’s sensitive homeland security information. I mean there’s some really ridiculous things that are happening.

And, people are so worked up, and so frightened, that they’ve kind of let common sense fly out the window.

OJR: I recall that a few months after 9/11, I was teaching a computer-assisted reporting class, and we tried to get information on whether ground water had been contaminated around a particular plant. We couldn’t get the information, whereas it had been fairly easy to find that kind of thing out online before.

Dalglish: Yes, they took it down. They took a lot of that kind of information down, because, you know, a terrorist might use that to poison people! Well the same information a terrorist could use to do damage, citizens who live in that area might appreciate knowing so they can tell their children not to drink the ground water. It’s a total double-edged sword, and they’ve got to be so over-protective, that they’re not using common sense. How can you insist that the EPA clean up your ground water if you’re not allowed to know that it’s contaminated? It gets to be infuriating.

Legislative update

OJR: Reporter’s Committee for Freedom of the Press devotes a lot of its resources to keeping track of shield laws, sunshine laws and the like. How do we stand with regard to that?

Dalglish: The [proposed Federal] shield law might move in the House fairly quickly. We’re having problems with some members of Congress who are concerned that journalists are going to protect leaked national security information. So that’s kind of a sticking point.

The Open Government Act, sponsored by [Patrick] Leahy (D-VT) and [John] Cornyn (R-TX) in the Senate, and by [Henry] Waxman (D-CA) and some others in the House, should be a no-brainer, but [Jon] Kyl (R-AZ) has put a hold on that, and he’s single-handedly blocking it.

OJR: The “secrecy Senator.”

Dalglish: Yes, the secrecy Senator.

OJR: Can you talk just a bit about the Open Government Act, which is designed to strengthen the Freedom of Information Act?

Dalglish: It doesn’t do anything, as far I’m concerned, that’s all that controversial or remarkable. It put things back the way they used to be as far as shifting in reimbursing people who have to sue the government. It doesn’t create any new information that’s off-limits. It creates some new tracking procedures, and puts some teeth into the enforcement of the act, and hopefully will make it work better, make it more user-friendly.

I don’t think there’s anything in the world that should hold this thing up. But they are so pre-occupied by immigration right now, that I don’t think anybody’s in the mood to tangle with Kyl right now. [This interview was conducted on June 26, 2007; the controversial immigration reform bill was defeated on June 28.]

What journalists and the public should do to protect the public right to know

OJR: What should journalists be doing right now with regard to Freedom of Information issues?

Dalglish: I think what journalists should be doing, quite frankly, is reading our website every single day. They should be paying attention to the sunshine in government initiative. They should be paying attention to Open the Government.org. They should be paying attention to the Coalition of Journalists for Open Government. And they should be getting active in these FOI-related journalism groups.

Just stay informed, and I personally don’t think that it is a conflict for journalists to take a political position on something that has to do with the need for government to inform its citizens. Now, if you’re covering a committee in Congress that’s considering amendments to the Freedom of Information Act, should you be up there testifying in favor of the Act? No. But, what you should be doing is supporting the non-profit organizations that are trying to speak up on your behalf, to ensure your ability to do your job.

OJR: Are we doing an adequate job of making the public aware of these issues at this point?

Dalglish: We’re doing better. The American Society of Newspaper Editors has been working very hard the last two or three years on Sunshine Week. It started with newspapers, it spread to online and its spread to broadcasting. In March, right around James Madison’s birthday, we try to convey information to the public about why it’s important to support open government. Why it’s important on both the state and the federal level, and I think that’s been a remarkably successful project.

OJR: You’ve been in your job at RCFP for seven years now. In 2010, when July 4 approaches, what do you hope you will see?

Dalglish: I hope to see that the Freedom of Information Act has been amended; I hope to see that we have a reporters’ privilege – a shield law. And I hope to see that various news organizations and the non-profits are up there pro-actively seeking things from Congress rather than acting defensively.

At this writing, it appears as if the Bancroft family, which owns controlling shares of stock in the Dow Jones conglomerate, may be close to directing its board to negotiate the price of a final sale. Meanwhile, mogul Sam Zell has been buttonholing members of Congress in his effort to get waivers from the Federal Communications Commission that would permit the ownership of newspaper and television properties within the same market.

Both pending sales have met with criticism from activists and observers concerned about media consolidation. The editors of the Columbia Journalism Review spoke for many in the industry when they likened Murdoch to a scorpion, and pleaded, “We hope [the Bancrofts] find a way to keep this American treasure away from Rupert Murdoch, who will smile even as he raises the stinger.” The United Church of Christ and a coalition of civil rights and other groups have petitioned the FCC to stop Zell from obtaining the waivers that would make the Tribune bid possible.

While these issues have grabbed the headlines, the battle lines over media consolidation spill into other regulatory skirmishes over such issues as Internet radio, cross-ownership rules and the Net Neutrality debate. The debate has further intensified with advent of digital television in 2009, because the FCC will be auctioning off the portions of the broadcast spectrum currently used for analog television.

OJR spoke with two experts on media policy who differ strongly on consolidation and a host of other issues.

Mark Fratrick is an economist who has worked on broadcast regulation issues at the Federal Trade Commission and the National Association of Broadcasters. He is currently vice-president of BIA Financial Networks, a Virginia-based consulting firm. Craig Aaron is the press liaison or Freepress.net, a non-partisan think tank on media issues. Here’s what they had to say about the Dow Jones sale and several other issues related to preserving competition in the media marketplace. Their contrasting views highlight the ways in which technological change is creating new competitive realities and reshaping old debates about the tension between the media’s public service responsibilities and the economic imperatives of capitalist enterprises.

Issue: Dow Jones sale

Fratrik thinks Murdoch won’t sacrifice the Wall Street Journal on the altar of either profit or his brand of politics because to do so would be bad business practice. “I don’t think that Mr. Murdoch would seriously alter the quality and integrity of the Wall Street Journal. That integrity, that quality, that brand name is what the Wall Street Journal is. And Mr. Murdoch buys assets in order to improve the value of those assets and the value of his holding company. I find it hard to believe he would put that in serious jeopardy by diminishing the quality of such a thing.”

Issue: Net Neutrality

FreePress.net is one of the key players in the Save the Internet coalition, proponents of “net neutrality.” Net neutrality advocates say broadband providers are looking for ways to force consumers to pay extra fees for high-speed internet access and other premium services. They want Internet access to be treated as a public resource, much as telephony was 100 years ago. In the early decades of the 20th century, industry leaders and public policy makers made universal telephone service a priority, leading to a chain of business moves and legal decisions that culminated in the Communications Act of 1934.

In 2006, the Communications Opportunity, Promotion, and Enhancement (COPE) Act (HR 5252), a bill that provided for some net neutrality protections passed the House but died in the Senate.

Aaron worries that without FCC action, consumers could find their internet access restricted in the same way that cell phones are limited now. “If you look at your cell phone plan, there are a lot of restrictions in place. Network neutrality is not allowed. They [wireless access providers] can interfere with who gets to you and what kind of information you can get. So we’re looking to ensure network neutrality.”

That argument doesn’t sit well with experts such as Fratrik, who describes himself as “very free market-oriented.” In fact, Fratrik exclained, “Net neutrality makes my hair hurt!” Fratrik echoes the industry-led “Hands Off the Internet” coalition, which argues that “Net Neutrality” is “expensive and unnecessary. Net neutrality opponents say that current laws already provide adequate protections for consumers. Further, they say, the changes that Neutrality advocates want would add expense without benefitting consumers.

It’s not easy to find analyses of the issue that don’t lean to one side or the other. Project Censored has accused the mainstream media of largely ignoring the net neutrality debate in 2005 and 2006, calling it the most censored story in its 2007 list. The issue may get more coverage as the 2008 Presidential election approaches, especially since several candidates have already declared themselves in favor of Net Neutrality.

Issue: Concentration of Media Ownership

The Telecommunications Act of 1996 loosened some of the rules on, for example, how many radio stations a company could own, both nationally and locally. To Fratrik, that regulatory relief was essential: “I think that the competitive environment that both radio and television stations now find themselves in… is incredibly remarkable. Without the deregulation of the ’96 Act, … broadcasters would be even in a worse position than they are now.”

The actual development and implementation of regulatory rules in the years since 1996 has been contentious. In a 2004 decision in the case Prometheus v. FCC, the Third Circuit Court of Appeals stopped plans announced by the FCC in 2003 to further loosen caps on the number of radio, newspaper and broadcast outlets that can be owned in one market. In 2006, the FCC announced that it was seeking public comment on how to respond to the order. In 2004, Rep. Maurice Hinchey (D-NY) introduced the Media Ownership Reform Act, which would roll back much of the deregulation of the last two decades, break up some media conglomerates, and re-introduce the Fairness Doctrine. So far, the bill has not made it out of committee.

The transition to digital television brings a new twist to the consolidation debate with the FCC’s forthcoming auction of the analog bandwidth that over-the-air television broadcasters won’t be using any more. Digital television, which will become standard in 2009, also promises to create a host of opportunities for new interactive media services. FreePress.net’s Craig Aaron is worried that, “the way the auction is taking shape, it very well could be that the same companies that already dominate our broadband market – the phone and cable companies. Phone companies, in particular, are in a position to swallow up this spectrum.”

FreePress.net and its allies are urging the FCC to follow “open access rules” that it says will lead to greater consumer access, more innovation, and more marketplace competition. Those rules include requiring licensees to make bandwidth available, at wholesale rates, setting aside a portion of the spectrum for unlicensed wireless services, and ensuring that customers will be able to connect to wireless services without having to purchase a device endorsed by their wireless carrier. They also support passage of the Wireless Innovation Act of 2007, which would turn these recommended rules into law.

Issue: Diversity of Media Ownership

One of the reasons, the Third Circuit ruled against the FCC in the Prometheus case is because it rejected the FCC’s claim that it could loosen ownership restrictions without further eroding the diversity of media ownership. That lack of diversity remains a serious issue.

Aaron and others point to the June 2007 report, “Off the Dial” as evidence of the the persistently low representation of women and people of color among the owners of the nation’s broadcast outlets. According to that report, African Americans, Latinos and Asians own only 7.7 percent of the nation’s full-power commercial broadcast stations, despite representing about one-third of the US population. An October, 2006 study, “Out of the Picture,” found people of color similarly scarce among commercial television station owners. Women constituted just under 5 percent of television station owners, despite the fact that just over half the US population is female.

Fratrik says diversity of ownership and opinion is “always a valid concern.” However, he adds, “how it should be handled is another question, insofar as how you may hamper the ability of certain stations to operate for not allowing groups to acquire properties, troubles me. I think it’s a very good concern; I think it’s an important part of a democracy. It’s also an important part of communications policy. I’m always fearful if that is the primary driver in some proposals.”

Fratrick added, “If you just look at over the air broadcasting as your group of outlets, then there may be not as much diversity as one would like, but on the other hand, I think the broader media environment should be the environment, what we refer to as the media ecosystem that one should look at. Given the thousands and really unlimited number of outlets that one has available, I think there’s a tremendous amount of diversity.

“I think the current regulatory scheme is fine, insofar as providing enough diversity in that broader media ecosystem, that broader marketplace. I’m thinking of satellite radio, I’m thinking of the Internet, I’m thinking of video-on-demand, cable systems, the hundreds of newspapers, blogs – every day there’s a new avenue.”

“Not everybody has a broadband connection to the Internet, and not everybody has cable, and certainly not everybody subscribes to satellite radio. But when I take a step back and ask, what’s available to the American consumer, and what’s available for free, what’s available for a fee, what’s available online, I’m just wondering, what else more can we be doing?”

Aaron has some ideas that he thinks will lead to more diversity among media owners. “Well, he says, “you could lower the ownership caps, for a start. You can create incentive systems for those properties to be sold to under-represented communities.”

The Outlook

While Fratrik doesn’t expect MORA any bill like it to surface any time soon, he adds, “I’m always concerned when Congress talks about this, because I’m always fearful that they may come back and re-regulate, and I think that would be an unwise decision.”

Freepress.net disagrees. Aaron maintains that whether it’s the Internet, the wireless spectrum, cable or satellite, “they’re all a part of the public airwaves. And it’s the FCC’s job to make sure these airwaves are used in the public interest. And the public interest is lower prices, more options, more space to get faster Internet service, to connect their devices and do different things. Unfortunately, the history of media policymaking has largely gone in a different direction, and that’s taken this great public resource and privatized it in a way that it doesn’t serve the interest of everybody, and it does serve the narrow interest of a few big companies.” Aaron insists that the policies he and his colleagues recommend will yield “benefits in terms of new services, new products new competition.”

Whatever your philosphical predisposition, one thing is clear: the decisions taken by the FCC in the coming weeks and months will go a long way toward shaping the media environment for both journalists and news consumers for years to come.

As the world knows by now, on April 16, Cho sent NBC news a package containing dozens of images, video clips, and pages of text full of angry, delusional ranting. NBC, announced the receipt of Cho’s “manifesto” on Wednesday afternoon, in a blog entry from Nightly News anchor Brian Williams, as well as a scrolling “breaking news” ticker on the show’s website.

That evening, a selection of images, video and text was online, fronted by a banner photo of Cho holding two pistols aloft. The story about the multimedia manifesto was accompanied by several interactive sidebars: a slideshow beginning with a picture of Cho with a pistol to his head; a slide show about the victims, and an interactive gallery that included a timeline and other information. NBC assured viewers that it had withheld the most disturbing material. Before the evening was done, news organizations around the world had some version of the same package on their sites.

Audience reaction was fast, furious, and divided. Many commenters on the Nightly News were furious. “I am totally appalled that NBC News has chosen to broadcast the videos of a psychopath according to his wishes,” one commenter wrote. Others shared the view of another commenter who said, “As a news organization NBC was obligated to present the information to the public….” The next day, NBC, FOX and other broadcasters announced it would cut back the frequency of their broadcasts.

NBC did not respond to OJR’s requests for information about the specific editorial and design considerations driving its online presentation of the Cho manifesto. However, NBC News president Steve Capus issued a statement on the MSNC website and gave several interviews explaining the network’s effort to balance sensitivity to those affected by the tragedy with the imperatives of good journalism. “We believe it provides some answers to the critical question, ‘why did this man carry out these awful murders?’” the statement said, in part.

Even within the network, there were differences of opinion about just how much of Cho’s material to use. NBC dateline anchor Stone Phillips wrote in his blog, “Cho’s words and demeanor provide some insight into his troubled mind, notably his glowing references to the Columbine killers. But his ranting warrants only the most limited airtime, lest we reward him with a platform to spew his hate and a higher place in the pantheon of mass murderers.”

The network’s supporters included independent journalist Kevin Sites, who argued that, “holding back information that is critical to the story, no matter how difficult or disturbing it may be to hear or see, corrupts journalism’s ability to report the truth and the public’s ability to understand it.”

Not Whether to Publish, But When and How

To Gary Dauphin, a writer, consultant and former editor of Africana.com this issue shouldn’t be whether to “run everything or run nothing. There are far more important questions about how you put things together and how it reflects your organizational values.”

Jonathan Dube, editor of Cyberjournalist.net and vice-president of the Online News Association, agrees that it’s about values. “It’s essential that news organizations do not simply post video such as this online just because they can,” he said. Dube says it’s also about making the best use of each medium:

“TV, radio and print don’t allow the audience to avoid the content if they so choose — if you air a video or print a large photo, your audience will see it. The web, on the other hand, enables the news organization to post the video, but behind a warning, so that only those who seek it out will see it. I was surprised that more organizations didn’t opt for more restraint in what they published in print and on air, and instead put the video online behind a warning.”

At Virginia Tech itself, the online staff of the campus newspaper, The Collegiate Times, didn’t spend much time pondering how to handle Cho’s materials. Christopher Ritter, the paper’s online editor, and his staff merely folded mentions of NBC’s receipt and airing of the materials into its running news bulletins, accompanied by a video still of Cho’s image emblazoned with the NBC logo and its “Breaking News” headline. The staff had been covering the tragedy with these time-stamped bulletins since news of the first shootings hit the campus on the morning of the 16th – a style of coverage they’d adopted after a campus shooting at the beginning of the school year.

When it came to Cho’s package, Ritter said,

“The reason we chose to only use one photo is because, obviously, CollegiateTimes.com is visited by a lot of the victims’ families, being a university paper, so we obviously should be sensitive to that. We don’t want to overly play what the shooter wanted. Yes it’s news, but those things were created a long time ago, and they really have nothing to do with a lot of the victims. Our news is related to the students and the victims’ families and the victims’ friends. We’re not serving the killer.”

Besides, Ritter added, people who want to look at NBC’s package will go NBC news to get it, not their paper. “There were some people in the newsroom who probably wanted to play it more than we did, but I don’t think there were any arguments about it,” Ritter said.

Good journalism, bad PR?

In an article on its website, NBC said it showed “two minutes of 25 minutes of video, seven of 43 photographs and 37 sentences of 23 pages of written material.” The same article quoted NBC news president Steve Capus telling talk show host Oprah Winfrey, “sometimes good journalism is bad PR.”

Some bloggers argued that NBC shouldn’t have been trying to do traditional journalism at all. Dave Winer provoked heated debate by declaring that NBC should have placed all of Cho’s ravings online.” We should all get a chance to see what’s on those videos,” Winer wrote. “Given enough time the focus will go on their process, much better to just let it all out now, with no editorial judgment.”

Xeni Jardin tracked the debate on the popular blog BoingBoing, and while she says she wouldn’t presume to tell national news organizations how to do their job,” the thing that really sticks with me out of that debate was the argument that it is distasteful and outdated and kind of wrong for news organizations to brand that kind of material, material that is so sensitive, or so graphic. It seems very strange to have the NBC logo burned into every single frame of the video that was released, and every single still image.”

As for whether all of the video and other materials should have been released online, Jardin finds “compelling arguments” for and against. “But I thought it was interesting that so many people expressed concern over the way the materials were released, that it was parsed out in a proprietary way,” with conditions that included the requirement that NBC be credited when the materials were run. “If anything, that kind of logic seems outdated these days.”

Former CNN assignment editor David Mindich, a professor at St. Michael’s College in Colchester, Vermont, acknowledges that this is one situation where standard operating procedures have to be scrutinized for sensitivity. “Typically, news organizations with ‘scoops’ tend to put their logo on broadcast reports.” Mindich said., “I think in hindsight, it certainly would have been better to depart from that tradition.”

A harbinger of things to come?

Whether it was Virginia Tech students blogging and twittering their experiences, the killer’s posthumous media kit, or news consumers flooding message boards with their reactions to the news coverage, there is no question that online and social media were central to the world’s efforts to come to grips with this tragedy. “Journalists are mindful that they can’t be gatekeepers in the media universe without offense,” Mindich said.

For crisis communications expert Richard Levick, this episode is proof that, “The days when there when there is any oligopolistic power in newsgathering are long gone. We’re going to continue to see increases in the amount of access we have to information. I think that’s only gong to make it more difficult for news organizations to decide what they show and don’t show.”

Former radio station owner Bruce Mittman believes that the way audiences used online media to register their reactions to initial coverage of Cho’s package is a bellwether. “I think we’re getting into a very interesting period in broadcast journalism,” he said, “In the past, journalists had more confidence that if they brought something to the public, they’d thought it through, felt it had value, and that it needed to be presented. I think for the first time, you’re seeing – maybe because of all the blogs, and because of the interactive nature of media now, and actually seeing responses that are quite passionate, and plentiful, is reason for pause, for the first time.”

Consider your legal exposure when choosing a structure for your business. Mark Anderson, an intellectual property attorney at Masur & Associates, says that, “Especially in terms of copyright infringement claims, damages can be very high, and if you’re not insulated by a corporate entity… then, your personal assets are potentially at stake. If somebody sues you for something that you wrote on your website, they’d be suing you personally, then you could lose your house; you could lose your car. But if you’ve got a business set up, that’s separate from you, it’s the business that would be sued, and the most you could lose from that is what you put into the business.”

According to Anderson, many small publishers find that a limited liability company, or LLC, provides the right combination of tax and legal advantages. Because an LLC is a corporation, its assets and liabilities are separate from those of its principals. However, some corporate structures have a disadvantage, because both the corporation and the individuals deriving income from them pay taxes. Owners of LLCs, along with S Corporations, can avoid this double taxation when their revenues are small, but they can change the way they are taxed if they start to make more money. LLCs have other additional advantages – for example, the ownership rules are more flexible.

An ethics policy or code of conduct may help protect you from libel or defamation charges. Ethics codes have their own virtues, and they don’t protect a publisher from legal action by themselves, but they can help to set the tone for an online community and clarify the publishers’ intent.

The debate over codes of conduct has become more intense because of the recent controversy surrounding threatening comments and pictures posted about prominent technology blogger Kathy Sierra. Sierra told readers that safety concerns led her to cancel speaking engagements and hide out in her home, awaiting the results of a police investigation. What followed was a vigorous, ongoing debate including efforts to create a bloggers’ code of conduct. [Full disclosure: I am a contributing editor for BlogHer one of the groups that figures prominently in both the Sierra controversy and the debate over blogging guidelines. BlogHer’s community guidelines inspired a proposed code of conduct proposed by well-known web writer Tim O’Reilly. Both codes pledge that online publishers will ban “unacceptable content” — content that might be libelous, abusive, or that might infringe on a copyright or trademark.

Anderson says it’s “tough to say” how a bloggers’ code of conduct might affect a legal proceeding. “There are certain protections under the law for journalists, and now it’s getting tougher and tougher to define who, exactly is a journalist. Potentially, adhering to one of these codes might be a factor that weighs in favor of somebody being treated as a journalist under certain laws.”

Small publishers doing journalism have to think carefully about the risks they are willing to take, especially since the legal definition of a journalist is subject to debate. Of course, freelancers and small publishers who commit acts of journalism have to understand that courts may not be willing, for example, to extend state shield laws protections to them. It’s also important to understand that federal prosecutors have broad subpoena powers when it comes to forcing the disclosure of information they deem important for a criminal investigation.

Nothing better illustrates the risks small publishers take than the case of videoblogger Josh Wolf, who was released from federal prison in early April after serving 8 months for refusing to turn over video outtakes from a July 2005 demonstration to a grand jury. Wolf claimed that, as a journalist, he was entitled to withhold the information under California’s shield law. However, the court rejected his claim because Wolf was not employed by a news organization at the time that he shot the video.

Be clear about your purpose. It’s because of Wolf and other citizen-journalists that Christine Tatum, president of the Society of Professional Journalists, thinks that the definition of a journalist should be expanded beyond those who are paid to report the news. “We want to define journalists as people who are gathering information with the purposes of distributing it,” Tatum says. “Rather than question for me being, ‘was that person a journalist?’ the question for me is, ‘was that person practicing journalism?’”

That view of journalists was part of the reason SPJ donated $31,000 to Wolf’s legal defense and helped him obtain the services of top-notch legal counsel. But Tatum acknowledges that the law has not embraced that definition, and neither do many bloggers. Noting that many bloggers say they aren’t journalists but want the legal protections afforded to journalists, she said, “I encourage people to really take a long and hard look at what is it you are, really?”

Take advantage of the growing number of educational resources and training opportunities made available by advocacy groups and professional organizations. Small business attorney Nina Kaufman notes that the Electronic Frontiers Foundation has a plethora of free resources, including legal guides for bloggers. The Media Bloggers Association is just one of several organizations that offers training in journalistic practices and legal issues. They have also taken the lead in advocating for press credentials for its members, most notably in the recent trial of Lewis “Scooter” Libby.

The MBA’s success echoes Anderson’s argument that, “the more professionally you run your blog site, the more you act like a traditional journalist, the more you are going to be treated as a real journalist. That would include adhering to a code of ethics.”

Be smart about copyrights. Anderson quips, “For starters, don’t use anything that belongs to any one else.” Seriously, Anderson urges publishers to educate themselves about fair use guidelines, which permit the use of small portions of copyrighted material for comment, criticism, parody or educational purposes. It’s a serious matter: Anderson warns that copyright judgments come with statutory damages that can be as high as $150,000 per violation. For that reason, Anderson urges publishers to think carefully before choosing to defy a request to remove material that someone claims is infringing on a copyright or trademark.

EFF maintains that major copyright holders such as entertainment companies often make abusive use of copyright laws — combating that abuse is one of their major areas of advocacy.

But online publishers are also copyright holders, and sometimes they, too, have to take action to protect themselves. Blogger Elise Bauer warns that there are some people who use RSS feeds to aggregate others’ content without their permission, forming their own revenue-generating website. Bauer urges using the Digital Millennium Copyright Act against them, either by filing a complaint with Google for content scrapers who use its AdSense program, or by complaining directly to the DMCA office itself.

When in doubt, ask a lawyer Anderson said the published guides and training workshops are great for general knowledge, but it’s best to consult an attorney for really specific questions. And EFF spokeswoman Rebecca Jesschke says that their attorneys have found that some media lawyers are willing to consult with small publishers for a reduced fee, assuming that the matter in question isn’t too involved.

Bottom line: choosing to publish online is an enormous responsibility, and it carries risks. But a professional attitude, self-education and a few proactive steps can go a long way.

Consider liability insurance Anderson says media liability insurance can offer “peace of mind” for online publishers. One leading provider, Media/Professional/Insurance, says the right policy offers much more. M/PI is one of two companies specializing in policies tailored for cyberspace-based businesses.

* * *
In addition: The SPJ, EFF and MBA are just a few of the professional organizations and advocacy groups that offer legal advice and support. Others include:

• American Society of Journalists and Authors: A free list of resources for authors on contracts, protecting copyrights, along with information about the Creators’ Network, a group dedicated to protecting authors’ rights.
• Online News Association: Provides legal resources for its members.
• National Writer’s Union: Has sample contracts, a system for resolving contract disputes between writers and editors, and educational resources for writers and editors.
• Reporters’ Committee for Freedom of the Press

Certainly, a lot of people are thinking about it, as evidenced, for example, by the discussion generated by Scooter Libby segment of the PBS Frontline series, News War.

OJR sat down with Ginensky to find out why she says that the Libby trial, “has changed journalism as we know it.”

OJR: You’ve said that “After this trial, even if privilege can be protected in federal and state courts, many may not perceive it.” What did you mean by that?

Ginensky: We all grew up in the “Deep Throat” era and thought that everything is protected and confidential. What we’re going to see, and I’ve already seen it myself, is lawyers – both on the civil and criminal side — thinking, ‘Oh reporters have to testify – that’s what the Libby case is all about. And it’s obvious that while there may be certain instances in certain courts where reporters have to testify, but in many states there are strong protections… shield law or common law protections. In federal courts there are still some protections, and some federal courts have been stronger than the DC court was.

So, I think lawyers’ instincts are going to be to serve a subpoena whenever they think journalists have information about anything – any information, whether or not it’s been published, whether or not it’s confidential, or whatever, they’re going to try to get reporters to testify.

Then I think you’re going to face the fact that sources have seen this group of reporters walk into the Libby trial and testify and be the number one and two and three witnesses against Scooter Libby. That is a position that I think reporters have always tried to avoid, to be a witness against people who are talking to you.

In the Justice Department, I think there has been a great reluctance to serve subpoenas on reporters – I think that’s changing. But… the fact that people think that the protections have been undone [doesn’t mean] that they have been undone.

We need to fight against that to the extent possible.

OJR: One of the extraordinary things about this case is that you have the White House and the prosecutor using the unprecedented tactic of getting sources to sign confidentiality waivers.

Ginensky: It is unprecedented. But what I have argued before is that the privilege is not the source’s; the privilege is the reporter’s. It doesn’t matter if my source is willing to speak, if I’m a reporter. It’s whether or not I will waive the privilege.

And I, as a journalist, have good reasons not to want to waive the privilege in addition to the source’s reasons, because it will chill the next source. I have won on that argument in both Federal and state courts before. Obviously this argument must have been made and did not work in [the Libby] case. If sources believe that their employers can get these waivers out of them, then they’re probably not going to be whistleblowers.

It seems to me that in the face of an attack like this, what we ought to do is to stand up and try to protect [reporters’ privilege] as much as possible, rather than lay down.

OJR: You say that there ought to be a conversation in every newsroom about the rules for granting confidentiality to a source. It’s been suggested that the practice of granting confidentiality has changed over the years from being an incentive that reporters sometimes use to coax reluctant interview subjects to being a privilege that sources expect and use to put out information for their own purposes.

Ginensky: I always understood, both from the dealings with journalists, and also from arguments that I’ve made in court, that it’s…used almost as a matter of last resort. We try to get people on the record, and not just take information off the record, because there are recognized dangers with this type of information.

And then, you may find yourself in a situation like Judith Miller, where you haven’t even published [your information] and you’re faced with having to try to protect somebody who you’ve really never tried to get on the record, and you put yourself, I think, in a bad situation.

OJR: This all comes about when the traditional interpretation of the Branzburg case is being challenged.

Ginensky: We’ve argued for years that the Branzburg case does not mean that there is no protection. But more and more courts – federal courts have found to the contrary. All the efforts to get federal shield laws are really important.

OJR: You’ve also suggested that reporters need to think about their methods and frequency of note-taking.

Ginensky: I think that each journalist needs to think about when they’re taking notes. There are journalists who always take notes – whether it’s on the record or off the record, and then they make a note afterward whether the conversation is on the record. And then they keep the notes, pretty much forever, and then they’ll be like Judy Miller – they’ll find them under desks, in shopping bags.

And that’s not a place you really want to be, because then you’ll have those notes being used to go against the memory of your source… Most sources are not likely to have that accurate a recollection, not because of anything nefarious, but because people just don’t recall the details of conversations. And given any time passage, most of us can’t recall. And so we have the journalists’ notes being used to impeach our source, and that’s a really terrible picture to put out there, and a really terrible position to put your source in.

So I think that people need to think initially, “Am I going to make notes for this conversation with this confidential source where there’s a likelihood I might end up in a battle about my notes?” Maybe you don’t make notes at all. Once you get a subpoena, you can’t get rid of your notes – that’s the destruction of evidence. So you have to think about it, I think, right from the beginning.

OJR: Many journalists hold on to their notes both in case there are questions, and because they might want to re-use the research for another project.

Ginensky: Right. And I’m somebody who defends a lot of libel lawsuits, and sometimes notes can be helpful. Most of the time, they could be helpful, but you’ve got to weigh the possibility of getting a libel lawsuit now against the possibility of a subpoena, and be thinking about these things ahead of time. You can never predict where your libel lawsuit is going to come from, nor predict where every subpoena is going to come from.

But in both instances, you can make some calculated decisions. I mean, I have been more surprised about libel lawsuits, but subpoenas – there are areas where people probably should think about whether they’re likely to get a subpoena. If you’re dealing with a whistleblower in a government agency, think about it ahead of time.

OJR: That gets pretty tricky when it comes to things like e-mail.

Ginensky: Yes, you have to worry about e-mails for your subpoenas; you also have to worry about your phone records, because there have been subpoenas to phone companies where you don’t even have control. Then, the fact that there is this phone record with you and this confidential source could reveal the confidential source. So you might want to think about some way to communicate other than the telephone. Hopefully, it won’t involve getting in the basement or parking garage like Deep Throat!

OJR: You’ve said the credentialing of bloggers to cover this trial is also significant.

Ginensky: The credentialing of bloggers is significant because it places them on a similar level as mainstream journalists. However, this event also raises some questions about the treatment of bloggers. For example, if they are treated as journalists, then will the standard of conduct practices that applies to journalists be applied to them as well in relation to liability issues? If you are considered a journalist, then you’re going to be held to a journalist’s standard of care in a libel lawsuit. I would suspect not all bloggers know much about the standard of care of how other journalists work. On the other hand, if they are considered journalists under shield laws, then, to the extent that they have confidential sources and the statutes that protect them, that’s a good thing.

OJR: Given what you’re saying, anyone who’s going to do journalism really has to have access to quality legal advice. When it comes to solo journalists, bloggers and small publishers, you’re not available.

Ginensky: Right, and I don’t have an answer for that. I would think for a lot of bloggers, it means getting insurance. I worry about risk, and I can’t say I have an answer for that. In terms of how they protect themselves, there should be a lot of reading and discussion. I would think that journalists who are in newsrooms. If they say to somebody, “I’ll protect you and give you confidentiality,” are they really willing to go to jail for that person? That’s a real problem, I would imagine.”

Whatever the verdict, we’ve all been sentenced to deal with a new with a new way of thinking about this, and the recognition that sources are going to think of it differently, and courts of going to think of it differently. In my view, we shouldn’t give up, but we should be proactive in the steps we take.

OJR: Are bloggers legally required to report donations to a Paypal account, Amazon wishlist, or other similar fundraising vehicles?

Kushner: I imagine that what your talking about there is that someone has an online magazine in the public domain, and they ask that if people like it, maybe they’d like to contribute money to it to help sustain the publication.

OJR: Right.

Kushner: In that regard, the first issue is, is the person publishing that site doing it for profit motive? If there’s a profit motive, then yeah, of course, any money that they collect would be income.

Now, why do I say a profit motive? What do I mean by that? What I mean is that people sometimes make their hobbies their business. So there’s some tests for when a hobby becomes a business or when a business is really a hobby. If someone is doing this for profit, of course any money they collect – they’re a US person, of course it’s taxable, no matter where it’s contributed from. When I say US people, I don’t [just] mean individuals, I mean a US corporation, partnership, individual trust – whatever it is. A US entity is taxed on its worldwide income.

OJR: For an individual blogger, what is the test to distinguish between a hobby and a business?

Kushner: The way the tax rules are set up is that if your income exceeds your expenses, it’s generally considered a business. Here’s the problem — a lot of people will take their hobby and say it’s a business.

Let’s say I have horses. I own horses, I breed them sometimes, I have a lot of horse expenses. Clearly I like to ride them a lot, but I say I’m in the horse business because I breed them, and whatever it is. I collect a little bit in fees, and I have huge expenses, huge losses in my horse business. It’s almost like a tax shelter, right? If I’m going to do the horses, whether I say I’m in business or not, why not take advantage of the tax deductions and say I’m in the business? So a lot of people will take their hobbies and actually say they’re businesses.

Well, in different types of activities… you have to show a profit in a certain number of years. You can’t show losses every year. Either two out of seven or three out of seven years, you have to have a profit. And there are a lot of other tests. If somebody says it’s a hobby and they’re profiting, the government is going to say it’s a business! The government gets the best of every rule. They have the ability because they have the hindsight. They know what has occurred, and they’ll make the determination based on what has occurred.

OJR: So that means you really have to keep accurate records.

Kushner: That’s the thing. If somebody has a hobby, and they really keep accurate records, and treat in a businesslike manner, the government may agree that it was an attempt at a business, even if you have losses. So, if you’re going to have a business and have losses, you’re going to have to keep really good records.

OJR: When should owners of blog sites file 1099 forms for contributing writers?

Kushner: The rules are the rules. Whenever you pay somebody more than $600 in a calendar year, you’re supposed to give them a 1099. In theory, what you should be doing is before you pay them the first time, you should request a certification of their [tax] ID number. There’s a form, W-9. Keep that on file, in case the payments go over $600.

OJR: In recent years, news organizations have been setting up shop in virtual worlds such as Second Life. Some of these news outlets sell advertising and other products on the web and in-world. They spend money creating offices in world and sometimes stage special events. There has been some discussion about whether assets created and sold in virtual worlds should be taxable. [One journalist, Julian Dibbell, chronicled his failed effort to get an answer to the question in this 2006 article for Legal Affairs magazine.] Given the interest in Congress in taxing revenues generated in virtual worlds, are there things that people who start businesses in those sites should be doing?

Kushner: We have a definition in the tax code of what gross income is. Any time gross income is realized, it’s taxable. Whether or not it’s a profit that you also pay tax on is a different issue, but anytime there’s gross income, it’s reportable gross income. So if somebody receives something of value, or they had an increase in their wealth as a result of a transaction, then it’s considered taxable income.

OJR: Dan Miller, a senior economist for the House joint economic committee, told Reuters last year. that, “you can have a virtual asset and virtual capital gains, but there’s no mechanism by which you’re taxed on this stuff.” Your thoughts?

Kushner: Certainly, if a US person has created virtual wealth which they can exchange for any product or service, or exchange it back into some currency, then it’s reportable income. Under our tax laws, I don’t care what [Miller] says, that happens to be the definition of income, and it’s reportable.

OJR: They have a virtual currency, called Lindens, that can be exchanged for US dollars.

Kushner: If you can convert it back to US dollars, or to Italian lira, or to any country’s currency, at any time, then, all they’ve done is created another medium of exchange. And to the extent that your increase in net worth exists as a result of your exchanges, you have income.

OJR: Is it taxable at the point when you convert it to dollars, or when you acquire it?

Kushner: It’s taxable when the transactions occur. It’s no different than if I convert my money into British pounds, and I put into a British stock brokerage account, and I trade stock in the United Kingdom, and I make money in that account, trading stock. Just because I’m trading it in sterling, doesn’t mean that I don’t have income.

Now, if you buy assets in those currencies, it’s when you sell the assets [that it’s taxable.] It’s what you realize in terms of US dollars Let’s say I buy an asset for £1 million, and the equivalent in US dollars is $750,000. Then I sell it at a £1 million. But when I sell it, the equivalent is $850,000 US because the exchange rate [fluctuates]. I’d have $100,000 of income, even though the sales price and the purchase price was the same.

Now, let’s say I make $1000 in a virtual transaction. If I use that $1000 to pay my office rent and telephone expense and my internet hosting costs – I’m using it for business expenses, I get to deduct those.

OJR: The tricky thing here, is that if you don’t convert your Linden dollars, what you’re buying and selling are virtual assets, which in the real world are just 1s and 0s.

Kushner: But it’s whatever the conversion rate is for those dollars after your own currency. So if it’s dollar for dollar, when you have a closed transaction, you have to measure the value of the transaction in US currency.

[As of Jan. 26, 2007, one US dollar was worth 267 Lindens, according to Reuters’ Second Life bureau.

OJR: You seem to have a very clear position, but it doesn’t seem to be something that is settled in the eyes of the IRS. So what should people who are active in places like Second Life be doing?

Kushner: We have to talk about the difference between US people and non-US people. The issues would most likely be – and I’m only guessing because I haven’t read much about this - transactions [by non-US people] that are occurring within the United States, and whether they should be taxed because they’re occurring in the United States. But they’re not getting taxed because the participants might be somebody sitting at a keyboard in another country.

OJR: It has to do with people in the United States, too.

Kushner: I think the difficulty there is that they probably have no way of tracing those transactions, and they’re probably trying to figure out how to set up some excise tax or something like that. That’s the only thing I can think of, because income tax rules are clear. You have income when you realize the accession to wealth. What that means is that if you sold something for more than you bought it for, no matter what the currency, no matter what the medium of exchange, you have income.

I think people have to aware that what they transact online with virtual dollars, they have to consider just as they would consider transacting business a real bank account. They have to account for the income, and account for the withdrawals for personal use

OJR: Do independent writers who are given equipment and software for review have to report it? (Last year, for example, Microsoft gave laptops with their new Vista operating system to several bloggers.)

Kushner: There are rules that cover that. They’re called the barter rules. If Microsoft sends a computer to somebody and says, “We’d like you write a review of this computer for us, and you can keep it for your trouble,” they’ve bartered that person’s services in exchange for providing them a piece of equipment. A person has income to the extent of the fair value of the piece of equipment that they’ve received.

OJR: Suppose they don’t put it that way. Suppose they say, “We hope you’ll consider writing a review?” But you don’t have to agree to do it.

Kushner: And if they don’t agree to do it, they can just keep the computer?

OJR: Right.

Kushner: And it’s unsolicited? That’s a good question. That depends on the existing relationship between the parties. There’s a couple of different things here.

Let’s pull apart the transaction where somebody gives you a book and says, “We’d like you to review the book.” What they could have done is say, “Here’s $25, go out and buy our book and please do a review for it.” You have $25 income that they’re paying you, then you have $25 expense for buying the book. You’re at zero for that.

A piece of equipment is a little bit different. On my books, when I receive this piece of equipment, I’m going to record “equipment: $500,” and I’m going to credit “income: $500.” Now, I can depreciate that equipment, I can expense that equipment under certain expensing elections. So, to a certain degree, I can come out at zero on that, as well.

The question is, do they have something they’re supposed to report? The answer to that is, “Yes.” They have bartering income.

They should probably be recording the value of that piece of equipment on one side [of the ledger] and either the expense of acquiring that equipment, to do the work that they had to do, value it a capital asset, probably. But somehow, it would become something that they ultimately would get a tax deduction for, in most circumstances.

OJR: I suppose your advice to any one who has questions would be to talk to their accountant.

Kushner: Yes. That’s absolutely necessary. We’ve had clients with Internet businesses, and let me tell you, some of them make substantial amounts of money, and the reason we to them as clients is because in their initial planning, they never thought they were going to make the money that they’re making. So their initial planning was off, in terms of the type of entity selected. There are consequences to entity selection in terms of self-employment taxes and things like that. So planning is key, especially if you are really doing it for profit and you have the potential to make a large profit.

Some of the experts we spoke to registered their strongest concerns about the Bush administration’s aggressive stance toward journalists. “George Bush is exceedingly bad news for this country on almost every front, and one of those fronts is his contempt for the press,” said David Rubin, Dean and Professor of the S.I. Newhouse School of Public Communications at Syracuse University. “He and his Justice Department, prosecutors, and the whole tone that he has set – are more than willing to use the subpoena power to get sources and get confidential information and basically, in his view, put journalists in their place.”

However, John Hartman, a journalism professor at Central Michigan University, predicted that in 2007, “The Bush Administration will be forced to back off on and drop its investigations and intimidations of journalists and news organizations as it is forced to spend time defending itself from various Congressional investigations, including those that might be preludes to impeachment.” Indeed, there are news reports saying that the President is beefing up his legal team in anticipation of Congressional investigations.

As critical as he is of the President Bush’s actions, Rubin doesn’t share Hartman’s expectation of change; “I don’t think anything changes him.” Rubin said it would not surprise him to see more journalists jailed in 2007: “Not only ultimately jailed, but more subpoenas for information, more subpoenas of phone records – whatever tactics [Attorney General Alberto] Gonzales and the Justice Department can come up with, they will.”

Hartman said a Congress led by Democrats will generally be more supportive of press freedom, and may even be open to passing a federal shield law, such as the Free Flow of Information Act sponsored by Sen. Richard Lugar (R-Ind.). Hearings were held on the bill last September, but “Congress might pass a federal shield law, but Bush would veto it under present circumstances,” Hartman wrote. “If he decides to govern from the middle and try to repair his public opinion ratings, Bush might allow it.”

But Rubin disagreed, noting, “[T]his is an issue that the Senate and the House have considered regularly since 1972, since the Branzburg case. So that’s almost 35 years ago, they haven’t done it yet. The situation is now far more complex than it was in 1972, now that you have online journalists and bloggers, which raise definitional issues. The mood of the country is not nearly as supportive of journalists as it was back then. The Congress has so much else on its plate this year, and it’s likely to be a highly contentious place that I just don’t think this is going to rise to the surface as an issue to consider. For all of those reasons, I would be shocked if a federal shield law was passed next year.”

In fact, according to a blog entry by CBS News legal consultant Andrew Shelton, Lugar’s bill died in committee last year precisely because Justice Department lawyers wanted to be able to compel reporters’ testimony in the forthcoming trial of Lewis “Scooter” Libby, who is charged with perjury and obstruction of justice in the illegal disclosure of the identity of CIA operative Valerie Plame.

In the area of copyright law, while big changes are not expected, there are still “many issues, both in terms of journalists reproducing content from copyrighted sources and, more significantly, having their work reproduced without permission,” said Jon Garon, Dean and Professor of Law at Hamline University School of Law in St. Paul, Minnesota. Those issues range from common internet practices that can expose journalists and bloggers to charges of copyright infringement to steps that online media producers may need to take to protect their work.

For example, bloggers frequently embed video or audio from sites such as YouTube or Odeo. But Garon said that even when the original source of the content is acknowledged, those bloggers may still be subject to charges of copyright infringement. While portal sites such as Google Video require that people uploading video to their site attest to their rights to the content they post, Google can’t guarantee that the posters are telling the truth. Someone who republishes that content without a demonstrable effort to prevent infringement can still be sued, Garon said.

Of course, most journalists use copyrighted material under the “fair use” provisions of U.S. copyright law. Those provisions allow for the republication of small portions of a copyrighted work for such purposes as news reporting, comment or criticism, or classroom teaching. The fair use doctrine has a long and venerable legal history, but Garon warned “the parameters of fair use are inherently fact-specific.” Further, as OJR reported last February, some experts are concerned that the improper use of cease-and-desist letters by copyright holders has caused online content to be removed.

According to Garon, one copyright issue that caused some controversy in 2006 will likely be ignored in 2007. That’s the law governing “orphan” works – works published before 1923 for which there’s no apparent copyright holder. Under current law, these orphan works are still under copyright – and anyone who uses them risks a lawsuit. In 109th Congress, Rep. Lamar Smith (R-Tex.), then chair of the Intellectual Property Committee of the House of Representatives, introduced the Orphan Works Act of 2006, which would permit their use when it can be demonstrated that a good-faith effort has been made to contact the copyright holder. Under fire from organizations representing professional photographers and others, Smith ultimately withdrew the bill from consideration, despite support from the American Library Association and others.

As to ownership issues, according to Hartman, “deregulation that would result in the lifting of cross-ownership restrictions is less likely to happen as Democrats are less comfortable with media conglomerates. Yet Democrats might support legislation that would make it easier for newspapers to survive and allow cross-ownership in circumstances where the newspaper would fail otherwise.”

Bloggers faced new legal challenges in 2006, both in the United States and internationally. Josh Wolf landed in federal prison for refusing to turn over unpublished video of a demonstration to a California grand jury. Hao Wu, who was imprisoned for five months by the Chinese government, apparently in connection with video that he was shooting for a documentary about underground churches in that country. Libel suits against bloggers are on the rise. And in December, an Australian court ruled that linking to copyrighted sound recordings can be illegal if it makes it easier to gain improper access to that material.

For Robert Cox of the Media Bloggers Association, these developments illustrate that many bloggers perform the same newsgathering functions as professional journalists, and thus require the same level of education, access and legal protection. His organization has spearheaded a training and certification program that would ensure that bloggers understand and adhere to high legal and ethical standards. MBA has negotiated agreements that will allow certified bloggers to obtain press credentials to cover such events as government press conferences and briefings.

Finally, “there’s something that’s extremely important in all of this, and it almost never gets talked about, Cox said. “Let’s start with this: Freedom isn’t free. If you’re going to publish – and bloggers are publishers – and you can’t back up what you’re writing with lawyers and resources to pay for all of that, you’re not going to last very long.” That’s why, Cox said, the MBA is negotiating with the insurance industry to offer liability insurance that bloggers can tap in the event of a legal fight. “As blogging and citizen journalism develops over time, you need to have access to this kind of support.”

China, Eritrea and Cuba top the list of governments responsible for jailing journalists, but the United States is responsible for incarcerating two journalists without charges, as part of the War on Terror. Bilal Hussein, a free-lance photographer for the Associated Press, has been held by US Security forces since April 12, 2006. Al-Jazeera cameraman Sami al-Haj was arrested December 15, 2001 by US forces in Afghanistan; he is currently held at Guantanamo Bay.

According to the 2006 Press Freedom Index compiled by another journalists’-rights group, Reporters Without Borders, the United States’ treatment of journalists placed it at 53rd on its press freedom list, tied with Botswana, Croatia and Tonga. China, Cuba and Eritrea ranked 163, 165 and 166 on the list, making them the countries with third, fifth and sixth most repressive records in the area of free expression. When the RSF began producing its list five years ago, the US rank was at 17.

Abi Wright, CPJ’s communications director, spoke to OJR about the new study of jailed journalists:

Wright: I think the rise in the number of Internet journalists on our prison list this year is startling, and reflective of trends that we’ve been following since 1997, when we documented the first jailing of an Internet writer. I think there’s two things going on. First of all, there are more people writing and doing journalism online. Secondly, the perennial offenders, China and Cuba , in particular, are just saying an increasing, or ever-present, I should say, intolerance towards reporting and dissent in any form, and online in particular.

OJR: You’ve pointed out that one in three of the journalists now in jail is an Internet blogger, web-based editor, or online reporter, and a large number of these people are not necessarily paid journalists, but citizen journalists?

Wright: Exactly. The nature varies from country to country. In countries like China, access to work as a journalist is very restricted. There’s party membership and all kinds of memberships required and it’s highly regulated and restricted. Writers and citizens have found the Internet to be one way that they can get information and transfer information. In Cuba, which is a slightly different example, a lot of journalists whose work ends up online, they actually telephone or transmit the information through different means, but it ends up being published online because they have no other way of just doing journalism there through official routes. So it’s reflective of the media environments in all of those countries.

OJR: Many of the people you are talking about are being held in secret locations and without charges. How do you get information about what’s happened to them?

Wright: Well, that is another sort of regrettable trend that we have documented, that 20 of the journalists on our imprisoned list this year, or 15 percent, are being held without charge. We have sources in countries like Eritrea, where we are able to verify information about journalists there. But it’s very difficult. We have reports that [several journalists held in Eritrea] may have been killed or may have died since they’ve been in prison. So, it’s challenging to get information about them, but it’s a real priority for us, absolutely. Journalists like [AP] photographer Bilal Hussein, and the cameraman for al-Jazeera, Sami al-Haj, we work closely with news organizations who have had employees detained to get information. And we also appeal directly to the US government about these cases.

OJR: Have international human rights organizations, the Red Cross, the UN or similar organizations been able to get to these people to verify their well-being?

Wright: In the case of Sami al-Haj, I know his lawyer has been in touch. He has a lawyer who is in communications with him. Communication with Bilal Hussein has been more problematic. He’s been held since April. We have called repeatedly on US authorities to make public the information that they allegedly have on these individuals and to either charge them, or release them. Different officials have assured us that they have evidence of some activity that could be seen as criminal, but we just don’t know what that is.

OJR: Leaders of the new Congress that will take office in January have promised new investigations into various aspects of the conduct of the War on Terror. Do you know whether the treatment of journalists will be part of that investigation?

Wright: I don’t know whether the treatment of journalists or international press freedom will be an issue for them, but I can tell you that during the confirmation hearings for [newly-confirmed US Defense] Secretary [Robert] Gates, Senator Warner of Virginia specifically asked about journalists’ safety, and mentioned CPJ. So we know that it is on lawmakers’ minds. And we are certainly doing everything we can to make sure that the situation for journalists, especially imprisoned journalists, in countries like China, Cuba, Eritrea, and also of course, those in US custody — that these cases are brought to the attention of lawmakers.

OJR: One case that CPJ has expressed concern about is the murder of Brad Will, an independent journalist who was gunned down October 27 while filming a protest by striking teachers in Oaxaca, Mexico . Some have called for the US to get involved in the investigation. What’s CPJ’s position?

Wright: My understanding is that the most recent development in that case has been very disturbing — the individuals who were arrested and charged with his murder have been set free.

OJR: Right.

Wright: We’ve been very active in Mexico, where there has been a string of murders, especially along the [US-Mexican] border area, where there’s known drug trafficking. We called on Mexico to appoint a special prosecutor for crimes against journalists. Under Pres. Vicente Fox, such a prosecutor was appointed, and I know that there is momentum to bring these crimes to a federal level, which would help expedite the prosecution of these cases. So from CPJ’s standpoint, we are pressuring Mexican authorities to bring those responsible for the murder of Brad Will to justice.

OJR: Any final thoughts that you hope readers will take away from this report.

Wright: I think it reflects a real change in the journalism landscape, when you have the second category of journalists behind bars being online journalists that shows a tremendous growth over the last decade. I think there’s no question. I think there’s no question, especially in Western democracies, but also in these other growing developing countries, that the Internet is a major conduit for information, and it will continue to be so. We will be fighting government attempts to crackdown on this as much as we can.

When the Internet was formed, the idea behind it was that it would be impossible to control and to censor. These governments are challenging that notion. I think it’s important for groups like CPJ and other members of the online community to remain vigilant in publicizing these attacks on journalists.

OJR: I noticed that a lot of the countries where we hear about repression of free speech have in their constitutions varying degrees of protection of free speech. So is there a different concept of free speech and a free press in these countries? Can you help me understand that?

AW: Yes, well, almost every constitution in the world is going to have some type of a clause that says that the country supports free speech or free association, et cetera. And they’ll be pretty much the same. In other words, what we call the legal rule is pretty much the same in terms of the words.

However, what we call the legal penetration of the rule or the enforcement of the rule is different in every country. Now, maybe in our media, you know they will focus on countries that our media believes are backward or primitive or cruel or whatever; but you have these issues of differences in legal penetration even in countries that are our closest allies, whether it’s in Canada or in England or France or Germany, much less any of the developing world countries. In every country, no matter how they define it on paper, in terms of freedom of speech and expression, there will be limitations on that expression.

Some of those limitations may be in the actual constitution, or either in that clause or in some clause at the very beginning or end of the human rights section. It’ll say ‘this section is limited according to the law’ or some other phrase that means basically if the government decides to limit speech in some way for some reason, it’s going to be allowed to do so.

Now, in some constitutions, there’s not any limitation that you can see in the words, but in the actual penetration of the section through different statutes that have been adopted. In the case of countries that are commonwealth countries like the US and Great Britain and all of the former colonies of Great Britain, the case law, you know, the courts will interpret that freedom of speech clause very differently with limitations.

So for instance, in the US, one of the well known examples is you can’t yell ‘fire’ in a crowded theater, even though normally you’d think ‘well, what does it matter what I yell?’ Well, because people know it’s a stampede and the courts will uphold that you just can’t say whatever you want. You can’t, when you go up to a security counter in the airport, joke about the president or bombs or anything like that and those are just easy-to- understand examples in our country.

So in every country, either through case law or through statutes that have been passed pursuant to the constitution there will be limits. There will be very great limits perhaps. Especially, every country, when there is war or times of rebellion or whatever they consider are national security concerns, they will generally not abide by the same principles that they do when there is no war or no uprising.

OJR: So basically, you’re talking about restrictions that have to do with the maintenance of public safety and stability.

AW: Yes, you could have those sorts of restrictions. You could have time, place, and manner restrictions. So in other words, you can march, but you can’t march early in the morning or late at night or in front of the abortion clinic within so many feet. But there can also be restrictions that have nothing to do with these sorts of issues, but have to do with issues that are unique for that culture. So, for example, in Germany there’s a freedom of speech clause, but in Germany they do not permit advocating returning to Nazism. In South Africa, there’s a freedom of speech clause, but you cannot advocate for Apartheid, the return of legal segregation. So those have to do with unique historical aspects of those countries.

And the fear, the very real fear in those countries that those who would spout such things of the past are still around and might come to power and they don’t want the populace getting riled up by people advocating these sorts of ‘-isms’, which in the case of Nazism led to a whole world war that left millions of people dead all over the world.

OJR: The kinds of restrictions that tend to worry a lot of journalists and human rights activists are the restrictions that are seen as having the intent of crushing legitimate dissent.

AW: Yes, that’s true, and that is one of the big problems. Our government will say whatever that journalist is saying or that blogger, it could be a blogger, that these are things that threaten the security of the nation. And so [they]‘ll arrest people who they’ve caught on the Internet even, accessing certain types of websites or doing their own little personal blog, much less a journalist for a newspaper, reporter, or author or something like that.

The Internet is new area in which we’re seeing a lot of restrictions by many governments. I took this as an example, for instance, in France, you cannot buy Nazi paraphernalia. So they restrict their websites that comes in and out of their country involving that topic. And you would think ‘oh, France, why are they worrying? They’re a great democracy’, well, they were also under Nazism. They were occupied.

Now, a human rights activist who favors the broader understanding of freedom of speech might see the repression of someone who has a blog that talks about repression or corruption as a free speech issue. Yet governments around the world, whether they call themselves democracies, monarchies, dictatorships may determine that those same words or that same blog is somehow a threat to the security of their nation and then round up a whole bunch of people. Only a few of those people will be brought to international attention.

OJR: Why is that countries such as South Africa have press systems that resemble our own while others such as Zimbabwe are notoriously repressive? Are the differences constitutional, political, or cultural?

AW: I really think the differences have to do with leadership. Just as the example of the difference between Zimbabwe and South Africa. Zimbabwe, I was involved in that movement to help get Zimbabwe independence when it was Rhodesia, and we were all very hopeful that Robert Mugabe, the head of one of the movements, ZANU was going to be a great leader, a great socialist. Well, he’s been in power since 1980, right? So he’s basically a president for life and he’s turned into a very repressive person, who doesn’t believe in freedom of speech, who imprisons people all the time, terrorizes people, throws journalists in jail, believes homosexuality is a sin, et cetera, and arrests people who exhibit any talk about homosexuality. And so there you have a kind of classic example of someone who started out, what many people thought he would be good, thought he would be in favor of human rights and freedom of speech, especially since he had been victimized by the British, by the white Rhodesians in the liberation struggle.

On the other hand, Nelson Mandela, who spent all those years in jail, he became the first president of a democratic South Africa and he only stayed in one term, one five year term, and he was a very conciliatory individual, where he did not retaliate militarily against those who had been in favor of Apartheid. And so that whole culture, legal culture we call it, that developed in South Africa under his leadership was totally different from the legal culture that developed in Zimbabwe under 30 years almost of dictatorship by Robert Mugabe.

As a result, the realities of the two countries are totally different and yet could have turned out the same if maybe Mandela stayed in two or three terms and then became dictatorial or get other members of the party, the [African National Congress] party, to be very dictatorial. But those are two good examples where the countries are next to each other and have some overlap in terms of what ethnic groups are there and their history, and yet their realities are different. Some would say that South Africa is unique, that there are many more countries like Zimbabwe that have had dictatorial leadership, no matter how nicely they started out.

Some would say the same about Cuba: it started out well, the revolution was great, but hey if you’ve been in power 40 years there’s no way you can attempt to say what you’re doing is appropriate including repression of freedom of speech. In Cuba, people feel Fidel has been in too long or that his government now led by his brother, temporarily or permanently, has been very dictatorial in terms of these human rights issues, even though it’s been great on other human rights issues like provision of healthcare and education and race discrimination. Is that the price you have to pay? You know, give up the freedom of speech or criticism of the government in order to have advances in these other areas.

OJR: In some countries, websites are banned and communications are monitored and people are in prison for disseminating banned material online. Has international law tried to grapple with these issues at all?

AW: International human rights law looks at these kinds of issues, but basically international human rights law is kind of has to be culturally specific. So there is not one answer. If you are what we call a cultural relativist of some type, meaning that you believe that human rights need to be seen in cultural context, then you have to have a more nuanced view on an issue like freedom of speech. And if you are what we call a universalist, meaning that in its most extreme form, everybody everywhere around the world should treat freedom of speech the same way.

I lean more towards cultural relativism. In other words, I believe that the reality in Germany and South Africa about what they might permit for freedom of speech is not going to be the same as for the United States, which was never in jeopardy from being taken over by Nazis. And so we in the US could not just say ‘well, Germany you’re just wrong if you decide freedom of speech will not permit Nazis to march through Berlin.’ So I kind of lean that way.

Human rights organizations and activists will be all along the spectrum. And that spectrum can be both in terms, it can be in terms of country, what they think countries should do, or it can be an issue. People may say ‘yeah, we need to permit as much freedom of speech as possible, but it could differ from country to country.’

But when we talk about a right against torture, we should not say that the right against torture should be different in Zimbabwe than in France. You know there should be some universal standard on the right against torture, that means I don’t care where you are, you should not hang up people by their nipples and use electric prods on them.

OJR: On that topic, are you concerned about some of the measures that the United States has been taking as part of this anti-terrorist efforts? For example, our government has detained people without charges, including one journalist who works for an American news organization.

AW: I haven’t even heard about this. Who does this person work for?

OJR: There is an AP photographer [Bilal Hussein], working in Iraq, whose been detained without charge for the last several of months. The Associated Press has been trying to get the United States to either charge him or release him.

AW: It doesn’t surprise me because under the USA Patriot Act, a lot of rights we thought we had, we don’t. So the U.S. government has felt free to round up mainly foreigners, but also some U.S. people and you know some of the cases have made it to the Supreme Court and many others haven’t. But it’s not very surprising.

And yes, I’m very concerned that since we in the United States hold ourselves up as a democracy and we are the only global superpower, that we should hold ourselves to a higher standard in terms of our conduct when maybe some other countries are going to be under. I don’t expect one of the poorest developing countries in the world to necessarily have the ability to give human rights protection to offer citizens, where they can go to court and have lawyers and do certain things if you have a very, very poor country.
I hold my own country to the highest standards because we do have resources at our disposal, more so than almost any other country in the world. And especially, if we’re going to be a so-called global leader, then we should set a standard for the application of human rights like freedom of speech.

OJR: I don’t know whether you are familiar with this, but Rep. Chris Smith has sponsored a bill that would make it illegal for Internet companies such as Google to accede to the demands of governments for private information on Internet users or for the censorship of websites. It would also require Internet companies to turn over information on banned search terms and sites and queries to an office of global internet freedom that would be created. And it would also give individuals the right to sue if privacy was violated. Critics say that this bill would unfairly restrict the ability of U.S. Internet firms to compete in international markets. I wonder what you think of a measure like this from an international law perspective.

AW: Well, to me, this is like, the U.S. can pass a statute that bans the sale of cattle prods for torturing animals and so some company that makes prods can say ‘but look we can’t compete globally.’ Well, there’s certain areas of competition we don’t need to be in. If it’s something that’s so heinous, the product, or if it’s going to directly support blatant dictatorships like China, well then Google doesn’t need to be in that market. Yeah, I know it’s a big market. There was a big market for slavery. So does that mean we still need to have it today? There could be certain things that morally we would say ‘I’m not going to be permitted or not be encouraged even if that means a company loses its profit.’

Profiteering should not be the standard by which we would judge the provison of internationally human rights. And yeah, that would mean some other Chinese company will be more than happy to invent a mechanism that its government can use to censor as they do the words and the searches of all the people here.

In my travels to various countries, I have had experiences browsing the internet where I’m doing something that seems very innocuous to me, but all of a sudden some site won’t work, at all or some little sign will come up about restricted access or unavailable. This is from all kinds of countries. The fact that somebody must be monitoring every website that I was trying to go to, you know, is a pretty scary thing.

OJR: As you look at the evolving situation in terms of press freedom, especially online, are there things that cause you particular concern or give you particular reason for optimism?

AW: I’m not optimistic at all because I think the ongoing war on terror, is only going to get worse. The more we do these actions, the more future terror we create, and so then the more desire or need the governments will feel to repress those people. So I think we’re going to see even harsher standards of censorship than what we see now. We may very well get to a total Big Brother situation where all of our email and all of our mail and phones calls are just monitored electronically on a regular basis.

These little GPS devices that not only are in cars, but now are in the cell phones, people can track you where ever you are. It’s nice if you’re lost and your car goes in a ditch, but we get really toward a science fiction nightmare. We all could be tracked at every minute where ever we are, that there’d be no privacy. I’m not in favor of terrorism, whether terrorism is done by government bombing villages or terrorism that is done by an individual suicide bomber. I’m not in favor of that, but I’m also not in favor of a total loss of all kinds of freedom of speech, an assembly, an association.

OJR: And what do you think then that citizens and particularly journalists can do? And do you think journalists have an obligation in this or an opportunity in this situation?

AW: Well, I think all of us, regardless of profession, have an obligation. I know there are several prominent national and international journalists’ groups that advocate for human rights and blow up the cases of journalists all around the world who are victimized by governments or private individuals. So I think those organizations, which already exist, need to be supported to a greater degree even by not only journalists, but by the public, so that the word can get out. Because the only way we know what’s going on in a lot of countries is because of brave journalists, who dare to speak out or who dare to go into horrible situations and risk their lives and report out. If those journalists are removed then the rest of us will have no idea what is going on in a lot of countries.

And I realize a lot of journalists will be self-editing on a lot of issues. Whenever you do a story you have to decide what’s important and not important, what’s going to sidetrack you, and what is going to be some kind of problem. So I think it’s important, for the public, to support responsible journalism that will help us see how human rights, including human rights for journalists who are reporting, are being restricted.

OJR: Any final thoughts, particularly from a constitutional lawyer’s perspectives?

AW: No, I just think that it’s important for people to realize that words on paper in any constitution, including the U.S., are only a starting point. It really takes very careful study of cases or statutes or other parts of an entire culture to get a good grip on whether or not very bold or noble statements about human rights have any basis in the day-to-day reality in a particular country. So I hope this is the beginning of everyone deciding that they want to get more involved in trying to understand how do rights actually operate.

But Wolf’s willingness to go to prison rather than turn over unpublished video of a July, 2005 anti-globalization protest in San Francisco to a federal grand jury has earned him the support of journalists and civil liberties advocates across the United States. Prosecutors say they need the video outtakes to help them determine how a police officer was injured and a police car was damaged. Wolf and his lawyers say the video contains no information about the alleged crimes, and that as a journalist, he should not be compelled to turn them over. Further, they charge, the prosecutors’ actions in this case endanger not only the First Amendment rights of journalists, but the civil liberties of ordinary citizens with dissident political views.

After a six-month court battle that has gone as for as the Ninth Circuit Court of Appeals, Wolf was imprisoned on charges of civil contempt on September 22, 2006 at the Federal Correctional facility in Dublin, California.

“As unconventional and non-traditional as [Josh Wolf's] work in journalism may be in many respects, he is contesting an age-old argument… and that’s that journalists never should be arms of law enforcement,” says Christine Tatum, president of the Society of Professional Journalists. “Josh has, at great personal cost, taken quite a stand – an admirable stand, and he has said…, ‘I am not divulging unpublished, unedited, unaired material…for a grand jury’s review. And we stand wholeheartedly behind him.”

So much so that the SPJ donated $30,000 for Wolf’s legal fees and convinced his lawyers to cap those fees at $60,000. Tatum said the grant is SPJ’s largest-ever award from its legal defense fund.

According to an e-mail from Luke Macaulay, a spokesman for the U.S. Attorney’s office, “The incident is under investigation so that the [Grand Jury] can determine what, if any, crimes were committed… As we have argued in our court filings, the GJ is therefore entitled as a matter of law to all of the evidence in Wolf’s possession related to the demonstration. Six separate judges or panels have now ruled unequivocally that we have lawfully issued a subpoena for a legitimate investigative purposes, and that the material in question should be furnished to the grand jury.”

The case law on journalists’ efforts to withhold information from grand juries rarely favors reporters. The most frequently cited precedent is Branzburg v. Hayes, a 1972 Supreme Court case in which it was determined that, with rare exceptions, journalists have no greater protection than other citizens when it comes to complying with a grand jury. The exceptions are when the prosecutor’s actions can be reasonably considered harassment, or when disclosure would violate the journalists’ Fifth Amendment protection against self-incrimination.

Coincidentally, at the time Branzburg was handed down, the presiding judge in Wolf case, William Alsup, clerked for Justice William O. Douglas, author of a key Branzburg dissent. Douglas wrote:

“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens.”

However, in a redacted transcript of Wolf’s June 15, 2006 hearing before Alsup, the Judge departed from Douglas’ view, declaring, “The U.S. Supreme Court said there is no journalist newsman’s privilege under the First Amendment.”

For Wolf’s supporters, one of the major problems with his case is the fact that it’s being prosecuted in Federal court. Normally, they maintain, such a case would be tried at the state or local level, where California’s shield law would apply. That law protects journalists from being required to disclose unpublished information gathered for a news story. According to news reports, federal prosecutors say the case falls within their jurisdiction because the San Francisco Police Department receives federal funding and thus, the damaged police car is federal property. In an August, 2006 interview, Wolf asked, “If an S.F. police vehicle is considered federal property, then what isn’t federal property?”

Tatum agreed. “That this is a ‘federal’ case is absolutely positively laughable,” she said, adding, “This is just an example of the federal prosecutor over-reaching to make a point, and to stick it to the news media, just to see if he or she can.”

But according to Macaulay, “This office did not initiate a federal investigation in order to circumvent the California State Shield laws.” Besides, he noted, the September 1 ruling handed down by the 9th circuit court declared that Wolf failed to prove that he met the California law’s definition of a journalist – someone connected with or employed by a newspaper, periodical, wire service, press association or other recognized news outlet.

Wolf’s status as a journalist has, indeed been open to debate. Part of the problem is that existing law hasn’t caught up with the ways in which the Internet has affected the newsgathering process, according to David Bodney, a media lawyer with the Phoenix office of the law firm of Steptoe and Johnson, and an adjunct professor of media law at Arizona State University. “Legislators are struggling with how best to define journalists for the purpose of establishing a statutory privilege,” he said.

For Jane Briggs-Bunting, director of the Journalism program at Michigan State University, the problem is Wolf’s objectivity. “You can’t step in and out of being a journalist,” she maintained.”You can’t become an advocate. ” Tatum added, “There is a degree of discomfort that I’ve felt with some of his assertions, as far as viewing himself as an advocate. I think that it’s very important for online journalists to begin to understand.. that it’s very, very important that you do maintain some sort of objectivity and distance.”

However, Wolf’s lawyer, renowned First Amendment advocate Martin Garbus says the government isn’t really after information about the alleged crimes committed at the demonstration. According to Garbus, “This was the use of an FBI anti-terror law to get information on people they can’t get information about, such as anarchists. They know he knows nothing about the actions involving the police car.” Garbus says what federal officials really want is to know who the demonstrators are. He calls the prosecutors’ actions, an “abuse of the grand jury,” and an “expansion of the anti-terrorism investigation to other dissidents.”

For this reason, Garbus maintains that Wolf’s case is very different from that of former New York Times reporter Judith Miller, and San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, all of whom were jailed for refusing to reveal confidential sources to a grand jury.

Miller, who served 85 days for withholding information from investigators looking into the Valerie Plame leak, is among Wolf’s supporters. In August, 2006, Miller videotaped a statement supporting Wolf outside of the prison where he was held pending a bail request. “I feel that the Josh Wolf case and my case and others like it are really going to have a chilling effect on the press,” she said, “and a chilling effect on the willingness of sources to come forward, to report instances of wrongdoing or abusive behavior by government or powerful corporations.”

Miller, Tatum and others consulted for this story insist that Wolf’s case demonstrates the need for passage of a Federal shield law, such as the proposed Free Flow of Information Act currently before the U.S. Senate. That measure, sponsored by Sen. Richard Lugar (R-Ind.) would limit prosecutors’ power to compel journalists’ disclosure of confidential or unpublished information. In the case of a federal criminal investigation, the government would be required to demonstrate that the information is essential to solving a crime and cannot be obtained any other way. But passage of the law won’t occur any time soon: consideration of the bill has been postponed after the Justice Department objected to provisions concerning the disclosure of national security information.

Tatum said, “The Circuit Courts are a big mess, in terms of the way they’ve interpreted Branzburg v. Hayes.” Indeed, the a summary of district court rulings from the First Amendment Center reveals wide variations in interpretation. Decisions from the Sixth and Seventh Circuits reject the notion of journalistic privilege, and for the Eighth Circuit, it’s an open question. The other courts recognize varying degrees of “qualified” privilege. Tatum and others insist a federal law would set a consistent standard that everyone can follow.

Wolf has said that his next step is request an appeal en banc — a hearing before the full panel of judges on the Ninth Circuit. But even his Garbus is not optimistic. In a September 29, 2006 post to Wolf’s blog, he lamented, “Unfortunately, the probabilities are that [Wolf] will wind up being the longest-jailed journalist in America.”