“I can’t stand up and support legislation that would provide the proper protection that a shield bill would for 80 percent of my membership and sell my other 20 percent down the road,” says Smith, a professor of journalism at Fairmont State University in West Virginia.
And many are mindful that, as technological and financial issues upend the way journalism has been done, a functional definition stands the best chance of meeting the test of time.
“It is a changing world. There are people who may or may not be getting paid, who clearly fit the bill and are very likely to be getting subpoenas at some point in the future,” says Kevin Goldberg, counsel at the American Society of News Editors.
While the House’s status-dependent definition may have given some pause, the bill as originally introduced in the Senate was purely function based. It outlined a list of actions that journalists regularly do to report the news—conduct interviews, observe events, analyze documents, regularly transmit their findings, and so on. There was no employment or income test.
“In other words, it’s not ‘Who you are working for as a journalist?’ but ‘Are you doing what a journalist really does?’” says Goldberg.
That is, that’s how it was until September 18, when New York senator Charles Schumer, one of the bill’s prime sponsors, introduced a new version of the bill which reserved protections not only for paid journalists, but only for journalists working for news outlets owning newspapers, magazines, news wires, broadcast stations and other traditional methods of news delivery. Even journalists being paid by online-only outlets looked like they’d be left out in the cold, unless the courts found that such sites met the definition of a “news agency.”
Schumer’s move sparked an online firestorm of sorts. New York University professor Jay Rosen tweeted a suggestion that Schumer’s move could have been a sop to “Big Media lobbying.” Marcy Wheeler of emptywheel diagnosed it as a “transparent bid to grant a powerful industry special privileges” at the expense of bloggers, and wondered if the move was done on the behalf of the “dying media outlets” in Schumer’s home town.
There’s little love lost in some of these quarters for old-line media—and vice versa.
“I think there are going to be people who complain about it no matter what, because, you know what, they live for complaining about traditional media,” says the Newspaper Association of America’s Paul Boyle when asked about blogger suspicions that they’d been thrown under the bus. “These guys are misinformed.”
Others in the coalition echo the point: Traditional media organizations’ representatives never asked that unpaid journalists be written out of the bill—and, in fact, they’ve been consistently advocating definitions that would protect amateur bloggers who practice journalism, even in the face of legislative hostility.
Smith, the SPJ president, recalls a particular three-hour meeting with staffers for a key Republican senator. “They wanted something that would eliminate bloggers, eliminate Internet journalists,” he says. “And we weren’t supportive of that.”
According to Laurie Babinski, lawmakers have objected to function-based definitions for reasons besides concerns over the potential abuse of an overly broad privilege.
“What we’ve been hearing from senators and representatives on the hill is that a lot of them are getting skewered by bloggers in their hometowns. ‘I don’t want this guy who’s basically putting me over the flame to be covered.’ A lot of it comes from personal interaction, rather than a hatred of all bloggers, or a genuine belief … that all bloggers aren’t journalists,” says Babinski.
“I know bloggers who are more journalists than print journalists,” adds Babinski. But some legislators have been tough to convince: “We always go back and remind them that the person who’s skewering you and sitting in his basement in his pajamas isn’t necessarily going to be covered. Is he engaged in the act of gathering information and disseminating it to the public? Does he have sources? Is he a journalist? The functional definition is going to weed those people out. But it’s hard to tell them that and then have them realize they have to trust the judiciary with that decision.”