Congress' Dangerous Attempts to Define “Journalist” in Shield Law Threaten to Exclude Bloggers

This has been cross-posted from the Electronic Frontier Foundation.

Lawmakers in Washington are again weighing in on who should and should not qualify as a journalist—and the outcome looks pretty grim for bloggers, freelancers, and other non-salaried journalists.

On July 12, the Justice Department released its new guidelines on investigations involving the news media in the wake of the fallout from the leak scandals involving the monitoring of AP and Fox News reporters. While the guidelines certainly provide much-needed protections for establishment journalists, as independent journalist Marcy Wheeler explained, the DOJ’s interpretation of who is a “member[] of the news media” is dramatically narrower than the definition provided in the Privacy Protection Act and effectively excludes bloggers and freelancers from protection. This limiting definition is causing alarm among bloggers like Glenn Reynolds on the right as well.

While the DOJ’s effort to limit the scope of who can be recognized as a journalist is problematic, it doesn’t have teeth. Guidelines are, well, guidelines. But the report is part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it. Importantly, Congress introduced federal shield bills in May—both ironically named the “Free Flow of Information Act of 2013”—that arguably would exclude bloggers, freelancers, and other non-salaried journalists from protection because they are not included within the bills’ narrow definition of who qualifies as a journalist.

If these bills—support for which the White House reaffirmed in its DOJ report—pass without change, Congress effectively will create two tiers of journalists: the institutional press licensed by the government, and everyone else. That’s a pretty flimsy shield if what we are really trying to protect is the free flow of information.

Not-So-Free Flow of Information Acts

Both the House (H.R. 1962) and Senate (S. 987) bills use the euphemistic phrase “covered person” as a stand-in for “journalist.” In defining “covered person,” the bills effectively describe an individual working for a mainstream news organization and threaten to exclude bloggers.

Specifically, the House bill requires that such an individual engage in “journalism” for “financial gain or livelihood.” The Senate bill defines a “covered person” as one who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes” on “local, national, or international events or other matters of public interest.” (emphasis added) Further, both bills explain that “covered person” includes that person’s “supervisor, employer, parent [company], subsidiary, or affiliate.”

The requirement of doing journalism for money and on a consistent basis, coupled with the suggestion that such activities happen within a larger journalistic organization, paints a picture of a New York Times correspondent—and arguably excludes bloggers, freelancers, and other non-salaried individuals who practice the craft of journalism and need the most protection.

Déjà Vu: Sen. Schumer’s 2009 Shield Bill Amendment Excluding Bloggers, Freelancers

Congress’ hostility to bloggers and independent journalists is nothing new. Indeed, EFF documented and fought against Sen. Charles Schumer’s (D-N.Y.) 2009 amendment to a similar federal shield bill that explicitly exempted bloggers and others from protections.

Clearly, Congress wasn’t listening. Though the prior legislation died after WikiLeaks—in conjunction with the New York Times and others—started publishing a trove of State Department cables in late 2010, Congress has revived both the good and bad. This time around, anti-blogger language is baked into the bills’ text. Sen. Schumer has re-introduced the Senate version with the restrictive definition of journalist, along with a large national security exception that would render the bill meaningless in the cases where a reporter’s privilege is needed the most.

Win-Win Legislative Fix: Define Journalism, Not Journalist

So what’s the solution? Congress should link shield law protections to the practice of journalism as opposed to the profession. Not only does this fix ensure that bloggers and freelancers are not categorically denied access to the protections to which they should be entitled under the law, but also it addresses lawmakers’ concerns, recently voiced by Sen. Dick Durbin (D-Ill.) in a June 26 op-ed, that in the absence of a legal definition of journalist anyone can claim to be one, thereby diluting the law by stretching it beyond any relevant boundaries. We can have a line in the sand; it simply needs to be one that is meaningfully tied to what journalism actually is—a point that Wheeler eloquently makes in endorsing a similar solution.

Plus this interpretation has the weight of precedent: EFF successfully argued in Apple v. Does in 2006 that the goal of a shield law is to protect the free flow of information, not the people we historically think of as journalists. And as EFF has explained, many federal courts use a test to determine if a state-level reporter’s privilege applies that turns on the practice of journalism, asking 

Fortunately, the bills currently moving through Congress have really good language defining journalism. Consider the House’s definition:

If we dropped the bills’ definitions of “covered person” and relied instead on the House bill’s definition of journalism, then we’d be well on our way to strong shield laws that protect the practice of journalism, regardless of what label we attach to the person doing it.

Why We Need to Broaden the Proposed Shield Now

Congress is moving forward with these anti-blogger bills: the Senate Judiciary Committee is slated to markup the bill later this month, the House has referred its bill to two Judiciary Subcommittees, and the White House reiterated its support for the bills in the DOJ report. Further, legacy media organizations like the Society for Professional Journalists and the Newspaper Association of America have voiced strong support for the bills’ passage.

Sending a clear message ensuring that bloggers are in fact journalists and that their work is journalism is even more important now than it was when Congress considered a federal shield law in 2009 because recent district-level decisions have denied this basic reality of contemporary journalism. Most prominently, in a ruling from October 2011, a federal district judge in Oregon suggested that bloggers not “affiliated” with a major media organization don’t fall under the protection of the state’s shield law. Such state-level narrowing of the scope of who a journalist is cannot be allowed to set the trend for the entire country.