Question:
Is the proposed federal shield law dead? If it is ultimately passed, would it be helpful or hurtful to bloggers and citizen journalists?
Response By → Levine Sullivan Koch & Schulz:
(Posted on November 5, 2008.)
No, efforts to pass a federal shield law are not dead, but they will likely have to wait until next year and the new Administration to move forward. It is unclear whether it would help or hurt bloggers and citizen journalists.
When discussing the proposed shield law, it is important to recognize that there are two versions of the law under consideration by the Congress, the House bill (H.R. 2102) and the Senate bill (S. 2035), and that the two bills differ in a number of ways.
The House bill passed overwhelmingly and with broad bipartisan support, 398 to 21, on October 16, 2007. The Senate bill experienced a procedural setback on July 30, 2008, when efforts to bring it to the floor for a vote failed as a result of maneuvering related to debate on amendments to an energy speculation bill. However, a number of supporters of the bill considered the vote, and the Senate’s attention to the issue, a positive development. At this juncture, given the explosive financial crisis on Wall Street, it seems unlikely the bill will be taken up again in this session.
Because there are some differences between the House bill and the current form of the Senate bill, the impact of a federal shield law on bloggers and citizen journalists will turn on which provisions are ultimately incorporated into a final law. Interestingly, regardless of who might be protected by the law, the present Senate version provides somewhat less protection for confidential sources in certain situations - like civil litigation - than does the House bill. However, in its current form, the protections the Senate bill does recognize would likely cover a greater number of bloggers and citizen journalists than the House bill.
The language of the current draft of the Senate bill uses a functional test to decide who would be protected by the law. It applies to all individuals engaged in “journalism,” a term that is defined as “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” Many bloggers and citizen journalists, provided they address public issues on a regular basis, would seem to be protected by this legislation.
In contrast, although the House bill employs the same definition of journalism, it adds a professionalism test to decide who is protected. It only applies to professional journalists, that is, individuals engaged in journalism “for a substantial portion of the person’s livelihood or for substantial financial gain.” Thus, although some might satisfy this standard, the majority of bloggers and citizen journalists probably would not.
Since the Senate bill is the less substantively protective of the two, it may have a better chance of passing in the House than the House bill does in the Senate. However, as the proposed law will likely be taken up under a new Administration and in a new Congress, it is difficult to predict at this juncture what the final version might look like. Moreover, particularly given some of the limitations of the Senate bill, if it is this version that is passed, the courts may have a great deal to say about exactly how the law would be interpreted and applied.
From Geanne: Thank you Levine Sullivan Koch & Schulz for this helpful reply.