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Sept. 17, 2009, 9 a.m.

Shield law: House and Senate differ on who’s a journalist

The Senate Judiciary Committee is expected to vote on a federal shield law today that would protect journalists from subpoenas for their confidential sources — that is, if legislators can agree on who counts as a journalist.

A version of the shield law already passed by the House (H.R. 985) casts the issue largely in financial terms (emphasis added):

The term “covered person” means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

That definition would exclude amateurs of any sort, whether student reporters or bloggers with a day job, not to mention to anyone in the grey area of citizen journalism. The Senate’s bill (S. 448) was originally far more expansive, covering anyone “who is engaged in journalism,” but the version likely to be considered by the Senate Judiciary Committee today gets more specific, while steering clear of the “livelihood” question. It would shield people who:

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes on such matters by—
(I) conducting interviews;
(II) making direct observation of events; or
(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form; and
(ii) has such intent at the inception of the newsgathering process;

Kevin Goldberg, legal counsel for the American Society of News Editors, told me yesterday that he and other press associations “would be very happy with that portion of the bill if it gets through.” He said the House’s conception of a journalist was too narrow but that the definition would have to be specific enough to avoid abuse of the new law, if it’s passed: “How do you differentiate between a blogger who acts as a journalist and someone who might create a website just to avail thmeselves of this privilege?”

If the Judiciary Committee approves the shield law and it’s passed by the full Senate, the next step would be resolving crucial differences between the House and Senate versions. Other portions of the bill, like what kind of information should be exempt from subpoenas, are likely to be more contentious than the definition of a journalist. Either way, both chambers exclude terrorists and terrorist organizations from the shield law’s protection — although, of course, the definition of terrorism can be an equally sticky matter.

POSTED     Sept. 17, 2009, 9 a.m.
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