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.
“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.”
Schumer’s office tried to reassure bloggers about his September 18 shift by issuing a statement to Markos Moulitsas of DailyKos, claiming, in so many words, that the new bill was a temporary measure designed to shore up support on the Judiciary Committee and at the White House, and that he would work to broaden the final bill’s protections.
At the end of the month, the White House’s unexpected opposition to the Senate’s original bill went public in a New York Times story by Charlie Savage. The administration wanted changes to the bill that would have lessened the bills’ protection, especially in cases dealing with national security. Their demands came as a big surprise to the coalition: Obama had been a co-sponsor of a very similar bill when he was a senator, and had spoken favorably about it as a candidate.
On October 30, Pennsylvania senator Arlen Specter, Schumer, and the White House reached a compromise. Schumer quickly introduced another substitute bill. The guts of the proposal—its instructions to judges on how strongly they should weigh, in a variety of circumstances, the benefits to the public in quashing a journalist’s subpoena versus letting one go forward—were now slightly less favorable to reporters than the Senate’s original version. But it restored a functional perspective on who the law would cover, with new, better-defined, but hardly more restrictive, language.
Most importantly, the bill now has clear White House backing, something that should prove helpful as Schumer and Specter round up votes. A full hearing before the Judiciary Committee will likely occur on November 19, with passage by the full Senate to follow. Then comes the conference committee to reconcile the House and Senate’s inevitably different versions—including, if the compromise bill’s covered-person definition stays as written today, different definitions of who, exactly, counts as a journalist. Which definition prevails remains to be seen.
“I think at the end of the day if you’re an online journalist working for a company or on your own and you on a regular basis report and distribute the news, you’ll be covered. I don’t know what the language will look like,” says Boyle, “but that’s the objective. There are modern-day pamphleteers here that you should be able to get covered.”