[Infowarrior] - How politicians weakened a legal shield for bloggers

[Richard Forno]

October 17, 2007 12:13 PM PDT
How politicians weakened a legal shield for bloggers
Posted by Declan McCullagh
http://www.news.com/8301-13578_3-9799178-38.html?part=rss&subj=news&tag=2547
-1_3-0-20

The House of Representatives' vote on Tuesday for a journalist shield bill
is a timely example of how legislation can be watered down surprisingly
quickly.

Originally the proposed shield law gave a broad immunization to journalists,
including bloggers who acted as journalists. But eventually it morphed into
a far less protective form.

Here's the progression:

#1 Original version:

    The term "covered person" means a person engaged in journalism and
includes a supervisor, employer, parent, subsidiary, or affiliate of such
covered person. 

#2 Second version approved by a House committee:

    The term "covered person" means a person who, for financial gain or
livelihood, is engaged in journalism and includes a supervisor, employer,
parent, subsidiary, or affiliate of such covered person.

#3 Third version as approved by the full House:

    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.

The original version was reasonably protective, and the term "engaged in
journalism" was reasonably well-defined. But by the time our esteemed
elected representatives got finished with it, a serious blogger who breaks
news (but doesn't have Google Ads on his site) would not benefit from the
shield. It requires "substantial" income, even though not all good
journalism is done for significant financial gain.

By the way, all versions of the shield legislation are pretty milquetoast
when it comes to actually protecting journalists. They say that journalists
can be ordered to the witness stand as long as a judge thinks their
testimony may be "essential to the investigation or prosecution or to the
defense against the prosecution," which is not that significant a hurdle in
practice.

I know this firsthand. The U.S. Department of Justice served me with a
subpoena to testify in a criminal case in Tacoma, Wash., and then demanded
that the judge declare me a hostile witness when I refused to answer certain
questions. Even the weakened, final version of the House bill is better than
nothing, but I fear it'll prove to be a very thin and easily circumvented
shield in practice.