It’s been a long, winding journey for the shield law. But the bill, which would provide journalists with some protection from being forced to testify in federal cases, has never appeared closer to becoming a reality than it does today.
On March 31, the House of Representatives passed a version of the Free Flow of Information Act—the shield law’s formal name—by a voice vote. Backers cleared an unexpected hurdle in late October when the White House and the bill’s prime sponsors on the Senate Judiciary Committee reached a compromise on just how robust the shield’s protections will be.
There is still some distance to go, and one clear sticking point along the way will be just who the bill should cover. It’s a tough, high-stakes question—those who end up on the wrong side of the line will get none of the bill’s protections.
For some people receiving subpoenas, that’s as it should be—not everyone is a journalist, and those that aren’t shouldn’t get protection.
But defining who’s in and who’s out is a tricky matter. The boundaries of state-level shield laws and court decisions recognizing some version of a reporters’ privilege have often been tested by everyday citizens and borderline cases who are called to testify and find it convenient to claim that they were acting as journalists when they came into information that a prosecutor or civil litigant wants to air in court. (One prominent example, decided in the Court of Appeals for the Third Circuit in 1998, ruled that a pro-wrestling color-commentator who was occasionally involved in plotlines was not entitled to the privilege.)
That prospect that non-journalists could abuse the privilege has raised concern among legislators, according to Paul Boyle, senior vice president for public policy at the Newspaper Association of America, and a leader in the journalism industry’s struggle to bring a formal shield into law.
“One senator who was concerned about the definition of who was a journalist said ‘We want to cover as many people as possible without covering all the people who shouldn’t be covered.’ Well, how do you draft that language to meet those objectives?” asked Boyle, with a chuckle.
Throughout the past several years’ effort for a federal shield bill—spurred by the high-profile cases of Matt Cooper, Judith Miller, Josh Wolf, Mark Fainaru-Wada, and Lance Williams—the definition of a covered person has shifted with almost every draft. At heart, there are essentially two approaches to the question. Are journalists best defined by the act of reporting (what’s known as a functional definition), or by how they are employed (a status-based definition)?
The most restrictive status-based definitions under consideration could require protectees to be employed by traditional news organizations, a restriction which would leave book authors, freelancers, student journalists, and independent bloggers—maybe even journalists working for online-only outlets—without any protection against being forced to testify in court.
The already-passed House bill adopts a financially-dependent status definition, requiring that anyone seeking the shelter of the law practice journalism for “a substantial portion of the person’s livelihood or for substantial financial gain.”
That isn’t how journalists would like the question answered.
“We have never been behind any language that deals with financial gain,” says Kevin Smith, president of the Society of Professional Journalists. “We’re just not behind that. Never have been.”
High among Smith’s concerns is how student journalists would fare, given that they comprise a large proportion of SPJ’s membership. In fact, Laurie Babinski, a legal advisor to the Society, says they wanted the word “livelihood” included in the House’s definition, in hopes that if the language made its way into law, a judge would be sympathetic to a student journalist who argued something like “’This is part of my training for my future profession—part of my livelihood.’”
Federal courts would of course inevitably be forced to interpret the linguistic vagaries of any bill. But the shield bill’s journalism community backers have always preferred a functional definition with broader reach, both for flexibility and because many different kinds of journalists, working on many platforms and for outlets with various business models, comprise the membership of the seventy-plus organizations involved with the effort.

Mr. Hendler pontificated: "not everyone is a journalist, and those that aren’t shouldn’t get protection... ...But defining who’s in and who’s out is a tricky matter."
padikiller responds: No it isn't.... Just wave a little kryptonite around... The last man standing is the "real" honest-to-goodness "journalist'...
But serously... It doesn't take any special education or skill to report the news. It takes typing. The reason politicians (and pimply faced "watchdogs") struggle with the definition of the word "journalist" is that there is in fact no such profession. "Journalism" is a concoction of academia. Defining a "real journalist" is tantamount to defining a "devout Christian", an "entertaining actor" or an "experienced phrenologist".
If journalism were truly a "profession", discerning a "journalist" from a layman would be a matter or record Like finding a licensed plumber or barber. But journalism isn't a profession.
Trying to define and distinguish a "jounrnalist" from the general population is like trying to define and distinguish a "good bookeeper" or a "good writer" from the general population. Anybody (with a basic education) can do it. Laying bricks requires more skill and certification than reporting does, and hauling garbage certainly requires more effort. Anybody who can type at a 10th grade reading level can be a reporter. Anyone who can do it at the 12th grade level can grab a Pulitzer, if he or she works hard enough.
#1 Posted by padikiller, CJR on Sat 14 Nov 2009 at 11:56 AM
A journalist has to assemble information and present it in a meaningful way to a greater audience. They have to tell a story.
Not everybody who can type can tell a meaningful story, especially one that has to be accurate. That is why there are so many many failures in journalism today, they don't know how to gather information, assemble it into a story, nor make it meaningful while retaining accuracy.
They know how to write down talking points and talk about them. Fields of study (such as economics, science, and history) are a fog, inaccessible to the journalist who then cannot make them accessible to the audience.
Many journalists are fish all swimming in the direction of other fish, unaware of the world outside their pond.
But that is not what journalism is supposed to be. Journalists are supposed to have some expertise in an area and two essential gifts, the gifts of comprehension and explanation.
The fact that the internet has opened up mass communication to the masses means that people who are not from the talking point culture of the pond can inform and when we think about what the purpose of the free press was, as envisioned by the architects of Democracy, it wasn't so that a business who sells advertising could enjoy special protections, it was to preserve a free and flowing access to information to the populace who requires it.
If it is the blogger who provides that information, then it shouldn't matter whether or not he/she gets paid for it by a conglomerate, it matters whether he/she is providing information to an audience.
And given the expertise of some of the online audience, the blogger sometimes provides more information better than those extra special fish who spend their lives circling the pond.
#2 Posted by Thimbles, CJR on Sun 15 Nov 2009 at 12:42 PM
Thimbles wrote: "Journalists are supposed to have some expertise in an area and two essential gifts, the gifts of comprehension and explanation."
padikiller responds: Says who?
There is no such thing in the real world as a "journalist". There are reporters in the real world. There are columnists. There are editors. There are photographers. There are publishers.
I don't know one single person who gets paid for being a "journalist".
Show me a masthead where a paid "journalist" exists in print, and then maybe I'll revisit my stance...
Reporting the news does not take "comprehension". Nobody knew why the Hindenburg caught fire. Reporting the news does not require "explanation". The readers don't need reporters "explaining" anything to them. Reporting the news requires OBSERVATION, VERIFICATION and ACCURACY.
#3 Posted by padiklller, CJR on Sun 15 Nov 2009 at 11:48 PM
I'll give you one:
http://www.huffingtonpost.com/the-news/reporting/murray-waas
#4 Posted by Thimbles, CJR on Mon 16 Nov 2009 at 01:10 AM
or two
http://www.vanityfair.com/politics/features/2009/10/bailout200910
#5 Posted by Thimbles, CJR on Mon 16 Nov 2009 at 01:12 AM
or a whole bunch:
http://www.mcclatchydc.com/
And if one has no expertise, how does one measure accuracy? There's a reason we don't ask fashion models their opinions on the financial bailouts, and it's because they'll end up sounding like Maria Bartiromo.
http://trueslant.com/matttaibbi/2009/09/02/maria-bartiromo-presses-44-year-old-congressman-if-medicare-is-so-good-why-arent-you-on-it/
O' media, what silly people you have on tv.
#6 Posted by Thimbles, CJR on Mon 16 Nov 2009 at 01:16 AM
Of course reporters have beats....
This is a natural economy of labor. However, it is not a necessary specializaton. One could stick a financial reporter in a fashion show and end up with a decent story- it would just take him or her longer to nail it down. And vice versa.
Your links are telling. The very first sentence of the first one you provided identifies Murry Waas as a "writer" and a "reporter". He gets paid for being a "reporter", not for being a "journalist". "Journalism" is a fiction- a mere "ism" concocted by reporters to inflate their egos. It's not a profession, it's a belief system, and an extremely dangerous one now that it presupposes that readers need to have information "filtered", "contextualized" and "explained" to them by "journalists" with agendas.
Indeed the reason that nobody- not you, not Mr. Hendler- nobody can define what a "journalist" is supposed to be is because there is simply no such animal outside of the ivory towers of academia. Anybody can type. Defining a "journalist" would be like defining a "ghost catcher" or a "snipe hunter".
#7 Posted by padkiller, CJR on Mon 16 Nov 2009 at 09:17 AM
Cool story, bro.
#8 Posted by Thimbles, CJR on Mon 16 Nov 2009 at 12:44 PM