Will lawmakers raise shields to protect bloggers?

There’s a knock at the door and suddenly you’ve been subpoenaed. A judge wants the notes that led to the latest posting on your blog. If you are a reporter with a newspaper or television station, there are laws and court precedents in place to protect you from revealing your sources. But do these protections apply to you if you’re an independent online journalist?

The courts have not yet answered that question. And bloggers and other online journalists are unlikely to be covered by the language currently in most state shield laws, which protect journalists from having to reveal their confidential sources and their reporting notes.

But several groups are arguing that bloggers and other online news sites should be covered by shield laws. Annalee Newitz, a policy analyst at the Electronic Frontier Foundation, a group that often aids in the legal battle for online rights, argues that online journalists often use confidential sources in the process of gathering information. Newitz believes the ability to ensure confidentiality is necessary to maintain the integrity of the independent media. After all, it was bloggers who reported on Sen. Trent Lott’s birthday wishes to Strom Thurmond and the “60 Minutes Wednesday” “Memogate” controversy — among many other stories — before most of the mainstream media got there.

“We want to allow for the idea that there are different kinds of journalism,” said Newitz, who notes that EFF regularly hears from bloggers who are facing various court orders. “The courts are just beginning to look at this issue.”

In order to determine whether bloggers and other online journalists not connected to traditional media companies are covered by shield laws, the courts may need to decide whether someone is a “journalist.” So, while some in the blogging community do not care what they’re called — or they don’t want to be labeled at all — it may make a difference if bloggers want to claim reporters’ shield protection.

On the (state) books

State shield laws were initially written to cover newspapers, beginning with the first shield law in Maryland in 1896 that barred reporters from being subpoenaed to reveal their confidential sources. Several states adopted shield laws in the ensuing years, including ten states during the Nixon era, when the administration began subpoenaing reporters. Some of these laws have been updated to include radio and television journalists.

Thirty-one states and the District of Columbia have shield laws, with varying definitions of who is a journalist. Some states define a journalist based on employment with a recognized news organization. For example, Delaware’s shield law covers “any journalist, scholar or educator who works 20 hours a week for a mass media outlet.” It is unlikely that an independent online journalist would be covered under a law like Delaware’s. But in Nevada, the shield law covers “former reporters,” which could include former journalists who create their own news-based blog.

Other state shield laws focus on the media form in which the journalist’s work is published. For example, in some states, magazines and books are not granted privilege by state shield laws. This past summer, a federal appeals court ruled that Alabama’s shield law did not protect a Sports Illustrated reporter from having to identify a confidential source.

There are a few states with more open-ended laws that could potentially include online publications. In North Carolina the reporter can disseminate information “via any news medium.” And in Michigan the law covers anyone involved in gathering information for broadcast or publication.

In the courts

The federal constitutional basis for journalistic protection was addressed by the Supreme Court in its 1972 decision in Branzburg v. Hayes. The ruling denied journalists any privilege to refuse to testify about confidential sources in a grand jury context, but the court recognized that “news gathering is not without First Amendment protections.”

Branzburg was the last word from the Supreme Court on a First Amendment basis for the journalist’s privilege. But many lower court decisions have also addressed the issue — and there is a wide variety of opinions. Typically, there is a three-part test used by courts to determine when a journalist is required to disclose confidential or unpublished information. If the information sought is highly material and relevant to the case at hand, and a compelling need exists for the information, and the information cannot be obtained by other means — then the journalist must reveal his or her source.

The most visible court case regarding bloggers and shield law came before the courts in spring 2005 in California. In this case, Apple Computer subpoenaed e-mail records from three sites that published confidential product information in an effort to find who leaked the information — presumably Apple employees. On behalf of the sites, EFF argued that the bloggers should be protected by First Amendment protections as well as California’s shield law.

In the decision, Santa Clara County Superior Court Judge James P. Kleinberg did not address the application of the state shield law to bloggers, ruling instead that neither a traditional journalist nor a blogger had the right to publish information that was essentially “stolen property.” The case is currently under appeal.

Many think the Apple case will force the question of whether bloggers are journalists under shield law. The test often used by the courts in determining shield coverage is whether there was an intent to disseminate information at the beginning of the newsgathering process. In other words, was the blogger acting as a journalist when she or he began collecting information?

“It’s a functional test: Is what you are doing journalism?” said Lauren Gelman, Associate Director of Stanford Law School’s Center for Internet and Society.

Federal statutory protection?

The inclusion of all journalists, regardless of the medium, under a federal shield law is encouraged by the Reporters Committee for the Freedom of the Press.

At a July Senate hearing, lawmakers asked media lawyers and journalists about a proposed federal shield law. Sen. John Cornyn, R-Texas, raised the specific issue of the medium used. Cornyn said he recognized that there is a changing definition of reporting and he asked, “Would you extend this privilege to a blogger?”

New York Times columnist William Safire testified in response, “I don’t think journalism should profess to be a profession. I think the lonely pamphleteer has the same rights as The New York Times.”

The hearing was part of a growing discussion over the creation of a federal shield law. The first proposed federal shield law was introduced in 1929 and several others have been proposed over the years. The two current versions of federal shield law were fueled in large part by the jailing of New York Times reporter Judith Miller when she refused to reveal her confidential source to federal prosecutor Pat Fitzgerald. Part of the discussion over the federal shield law is who should be covered by the legislation.

Both the Senate and the House are preparing to take up the similar bipartisan bills, which have been labeled the Free Flow of Information Act of 2005. This legislation would prevent government officials from forcing a reporter to reveal a source unless the source’s identity was “necessary to prevent imminent and actual harm to national security.” The language covers those who publish books, magazines, newspapers and periodicals in both “print or electronic form,” as well as their broadcast and wire-service formats.

According to Stanford’s Gelman, it might be the inclusion of the term “periodical” that could include a blog or other online publication. The popular definition of periodical is “happening or recurring at regular intervals.” So, if the blog is “published” on a regular basis, it could potentially be covered by the shield law.

Furthermore, a separate bill, sponsored by Sen. Chris Dodd, D-Conn., includes language that could potentially protect bloggers and other online independent journalists. According to the wording of the bill, a Web-only news site would be covered.

Specifically, the bill defines a journalist as a person who “engages in the gathering of news or information” and who also “has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.” News media is defined as “any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.”

In the meantime

Washington attorney Laura Handman, who handles subpoena issues for journalists, says there is no reason bloggers should be denied the same rights as traditional journalists — if their intention is to operate as journalists. To meet that standard, Handman recommends that bloggers ask story subjects for comment, verify information, identify on-the-record sources and strive for objectivity. In other words, exercising some kind of editorial control can increase the chances of being considered a journalist under a shield law.

“We believe that shield laws should apply to anyone gathering information and reporting to the public regardless of the medium,” said EFF’s Newitz. “If you are gathering that information for your blog, you should qualify and you should be protected.”

Regardless of their reporting methods and editorial practices, bloggers need to know the status and language of current state and potential federal shield laws. That knowledge can mean the difference between maintaining confidentiality and being forced to testify or go to jail.

Learn more about your rights

Electronic Frontier Foundation
“Legal Guide for Bloggers”

The Reporters Committee for Freedom of the Press
“The Reporter’s Privilege”

The First Amendment Center
overview of shield laws