Potential Court Divides on Shield Law, Blogger Inclusion Worry DoJ
The possibility that different federal courts might define journalists differently under the same federal shield law -- and give protection to nonprofessional bloggers -- is a driving factor behind the Justice Dept.’s opposition to bills pending in Congress, the Senate Judiciary Committee heard Wed. In a hearing with law enforcement and law professors on one side, and journalists and media executives on the other, each pleading for the other to trust their judgment in serving subpoenas or publishing leaks, none seemed pleased with the blogger question.
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The definition of “covered person” in the Free Flow of Information Act (S-1419, HR-3323) is so “expansive” as to “unintentionally offer a safe haven for criminals,” said U.S. Attorney, Houston, Chuck Rosenberg, speaking of behalf of DoJ, in written testimony. It was the first testimony on the bills from DoJ, whose representative cancelled testifying at the last hearing (WID July 21 p3). Beyond employees and subsidiaries of print publishers, broadcasters and wire services, explicitly mentioned in the bills, “the definition arguably could include any person who sets up an Internet ‘blog,'” which includes “other periodicals” as covered entities. Cornell U. Law Prof. Steven Clymer agreed bloggers could be covered, and urged a limited privilege that excludes leaks in criminal matters, like search warrant execution.
Even with a carefully drafted bill, “there’s no telling how courts will interpret it,” Clymer said: They “may not favor one group of media over another group of media,” such as bloggers. Chmn. Specter (R-Pa.) said 5 federal appeals courts recognize a reporter’s full privilege from divulging information and another 4 recognize limited privilege. Sen. Cornyn (R-Tex.) said “an Internet blogger who has a cellphone and a camera and a laptop” can publish “with almost equal ease” as a traditional journalist, but bloggers don’t necessarily have professional ethics.
On a side note, Patriot News (Pa.) Editorial Page Editor Dale Davenport said 2 reporters covering a public school board meeting in Dover, Pa., had been subpoenaed to turn over their e-mails to see if they had confidential sources not mentioned in their articles or that would otherwise prove bias. Any shield bill should protect traditional reporters from such requests with no criminal component, he said.
Similarity Between ‘Slate’ and Blogs
The potential interpretations of the bills seem varied. Sponsors Sen. Lugar (R-Ind.) and Rep. Boucher (D- Va.) have said blogs that bring in revenue could be covered (WID Oct 14 p1). Such interpretation is understandable, “but it isn’t in the plain language,” Gregg Leslie, Reporters Committee for a Free Press legal defense dir., told us.
On the surface, online magazine Slate should be treated no differently from his own blog, UCLA Law Prof. Eugene Volokh told us. Volokh writes for the popular Volokh Conspiracy group law blog. Both Slate and his blog publish posts and articles throughout the day with no set schedule, which is “one of the advantages of cyberspace,” but “periodical” could mean fixed-period posting -- daily or weekly, he said. Regular publication schedules are “an artifact of print-world economics.”
Shield laws at the state level have given varying definitions of covered people, some applying protection to FCC-licensed outlets, newspapers and traditional media alone, others providing a “function test” that defines covered activity rather than people, Leslie said. Del.’s shield law defines journalists by the amount of time they put into work, which would exclude “light-duty bloggers” and “require [his blog’s writers] to keep time cards,” Volokh said. State courts are “all over the spectrum” on interpreting state shield laws, with some giving what Leslie considers broad treatment to narrowly written provisions. Federal courts have been asked occasionally to interpret state shield laws based on the Constitution itself, and have leaned toward the function test, he added. Research done without public benefit -- for litigation or to exonerate oneself, for example -- wouldn’t be covered.
Volokh and Leslie proposed different remedies for shield legislation. Volokh said definitions for covered people or activities shouldn’t focus on reputation or size; the Instapundit.com blog receives more visits than many newspapers. Lugar and Boucher’s revenue interpretation “would be a pretty clear line, but I don’t think it would be a fair line.” Volokh wrote a N.Y. Times op-ed last year calling for a qualified privilege that rescinds the shield when a leaker commits a crime or something “civilly actionable” by contacting the reporter or blogger in the first place, as with trade secrets or classified information. This wouldn’t cover revealing a crime has been committed elsewhere, he added. Leslie said DoJ’s diverging-courts argument against the bills is “just an argument for a more concise definition,” but he said the group, while backing the bills, “wants to make sure anyone truly engaged in journalism is covered.” He added: “Calling someone a blogger doesn’t begin to answer whether they're a journalist.”