(Note: This is the second in a series of posts about this topic by Kelsey Browne & Ariel Fox)

Finally, on its 17th try, the Senate Judiciary Committee voted to send the proposed Federal Shield Law to the floor. This is promising, particularly because the Senate bill’s definition of who would be eligible for Shield Law protection – as it currently stands – is pretty good for bloggers, and better than the House bill’s definition. As we discussed previously, the House’s version restricts coverage to those who receive a substantial portion of their livelihood or substantial financial gain from their journalistic work, whereas the Senate’s new version protects those whose “primary intent” from the start is to gather and disseminate news to the public. Why is the Senate’s current definition better? Because an intent to disseminate news to the public, from the beginning of the journalistic process, is more reflective of an engagement in the journalistic process than a paycheck, particularly given the recent proliferation of volunteer reporters and news sites.

We propose a definition of “covered persons” under the Shield Law in which primary intent to disseminate news to the public plays a threshold role. In addition to this primary intent, and closely related to it, is the requirement that the topic matter be of interest to the public – not personal gossip. Once – and only if – those two requirements are met, a judge should consider three related factors: credibility, accountability, and the established nature of the news site.

Primary intent is of the utmost importance because the purpose of shield laws should be to protect journalists and their sources so that those journalists can provide newsworthy information to the public. This idea is at the root of the constitutional privilege, even if it is not at the root of many state shield laws, which, as Cydney A. Tune writing for the Practicing Law Institute (PLI) explains, “define the protected class more narrowly than the First Amendment does by focusing on the claimant’s affiliation with a type of news entity rather than on the intent the claimant had in gathering the information” (PLI Patents, Copyrights, Trademarks and Literary Property Course Handbook Series March-April 2009, Blogging and Social Networking: Current Legal Issues, 128-29). If the goal of a source, in speaking to a writer, or a writer, in listening to a source, is not to share or learn information that will then be provided to the public, there is no reason to grant special protection to the source or the writer. Shield laws were never intended to encourage secretive relaying of information in general.  They were intended to encourage speaking to the press, so that the press could inform the public. O’Grady v. Superior Court, one of the few cases to consider internet postings and shield laws (here, California’s), notes how a website can be deserving of protection if, “like any newspaper or magazine,” its “raison d’etre [is] the dissemination of a particular kind of information to an interested public.” This particular raison d’etre is and has always been the driving force behind the press, and, in order to claim the protection of the press, must be the driving force behind a blogger as well.

A second, related threshold inquiry concerns the subject matter of the blog. Blogs range a wide gamut, but in order to claim shield law protection they should contain general information that is newsworthy to an audience. While the audience interested in the news need not be national, nor even a large part of the population, it should be more diverse and larger than the bloggers’ circle of friends. As Amy Bauer notes, while more than half of bloggers discuss personal – i.e., non-newsworthy – topics, “42 percent regularly post about news and 35 percent about politics” (770 PDF). Bauer argues, and we agree, that, “The more frequently a blogger posts about newsworthy information, the more likely she is functioning as a journalist within the meaning of the FFOIA [Free Flow of Information Act] and the purpose of shield law protection” (770 PDF). While we believe the particular blog post in question should be “news” in order to be protected, other posts–appearing in the same site, by this author or others–can be helpful in determining whether or not the subject matter of the blog is news. One thing to be clear about, however, is that some editorializing should not remove a post or a site from being news. Just because a blog contains an opinion does not mean it does not also contain information the public might find newsworthy. Indeed, as Bauer notes, “Many established media contain at least some–and a number contain almost exclusively–editorials and opinion pieces” (<a href=”http://mjlst.umn.edu/uploads/aw/v-/awv-XJZ-y5fvGRhzjyslAA/102_bauer.pdf” PDF>770). Maureen Dowd and George Will deserve just as much protection as their colleagues ostensibly reporting just on the facts.

Once the two threshold components have been met, the following factors can augment a blogger’s argument for receiving a protection that would be afforded to traditional journalists. Because this is a highly fact-specific inquiry, it should be left to the judge’s discretion to decide what weight to give these factors in each scenario. Clearly these components – credibility, accountability, and the establishment of the site – are interrelated, as they all speak to the legitimacy of the organization.

The first factor is the credibility of the author and the site, which can be demonstrated in a few different ways.  Although bloggers often lack the resources to hire copy editors and fact checkers, which can provide the same editorial review process as newspapers and other mainstream media outlets, a blogger can develop a system of verifying information by stating the source of information whenever possible (769).  Keeping thorough notes and conducting extensive research demonstrates a commitment to accuracy that enhances a blogger’s credibility (769).  Bloggers can also take advantage of the nature of the medium, which allows an author to link directly to his or her sources to provide further verification.  The number and types of sources are a good indication of the bloggers’ reliability (768).  Several links to primary documents such as a government report or data from a respectable agency, for example, enforce an author’s credibility.  A lack of citations, or links to websites with anonymous posters, might raise some doubts as to the truthfulness of the information.  Although regular use of anonymous sources raises a red flag, a blogger who relies on anonymous sources “sparingly and justifiably,” can still be using a journalistic work process (768).  Relatedly, the number of times an author or a publication is linked to as the source also bolsters the credibility of that particular blog.  If other journalists or bloggers refer to a particular site, this could mean that the site is a reputable publication (487).  The more a site or a blogger is cited by others, the more likely it is that that person is a respected source within the community.  For clarification, one thing we do not believe adds to the credibility of a blogger is the fact that he or she can be “commented upon” or “checked” by online readers around the world.  Though some have used this as a defense of bloggers (482), what is often anonymous commenting does not truly increase the veracity of a post.

Another factor to consider is the accountability held by the blogger, or the extent to which the writer is putting his or her reputation on the line.  Someone who is clearly identified as the author of a particular post, for example, has much more to lose than someone who is writing anonymously (487-488).  This is particularly true when someone lists not only their name but also professional affiliations or credentials, which can be verified.  An author who openly associates with the information placed on the site gives credence to the argument that the information is accurate, reliable and legitimate.  While this may not always be the case, the fact that someone is willing to accept responsibility for the information on his or her site shows his or her conviction, in the same way that a journalist must stand by the information that appears under his or her by-line in a newspaper.  Accountability can also be demonstrated by the degree to which there is transparency in the ownership and sponsorship of the site (583).  This helps to determine what possible motives a blogger may have in writing about a particular subject.  A site that is owned by an energy company, for example, might have a severe bias if reporting on energy policy and would, therefore, be less deserving of  shield law protection.  Knowing who is paying the author and producing a site is important to determine whether the reporting and writing is objective journalism or disguised propaganda.

The final factor that should be considered when evaluating whether a blogger qualifies for a reporter’s privilege is the established nature of the site on which the blogger posts.  The frequency and regularity of publication on the site ensure that a blogger has a regular pattern of newsgathering and news dissemination.  While we do not feel that there needs to be a minimum number of articles published per week, we do think that consistency in publication shows that the site has a clear and established mission to gather and disseminate information.  The amount of time a particular site has had a permanent web address also helps to show the degree to which it is a stable publication.  Both the frequency of publication and the length of time a site has occupied its current web address were factors considered in O’Grady v. Superior Court.  Additionally, the court considered the number of unique visitors to the site each month.  To this, we would add that the number of hits a site receives over a period of a day or a week should also be considered.  If a site receives heavy traffic, this could indicate that the site has “a ‘following’ that looks to it for news and information on a regular basis for one reason or another” (487).  The combination of the characteristics of publication, the location on the web, and the relationship with the audience creates a picture of the site that helps to differentiate a serious publication with a journalistic function from those that are not.  Looking at the established nature of the site will also prevent people from claiming a reporter’s privilege without necessarily serving a reporter’s purpose.  This can help the court in determining whether the site and those who publish on it are deserving of the same protections afforded to journalists who work in more traditional media.

This test delineating when a blogger is a journalist stays true to the purpose of the shield law by using intent and subject matter as the threshold qualities needed for any sort of privilege.  This will limit the application of the shield law to those pursuing specifically newsgathering activities, as opposed to protecting anyone with the ability to publish online.  The tiered factors provide a guideline for judges to ultimately determine whether or not a blogger would qualify while maintaining judicial discretion.  It should be noted that any privilege afforded to journalists – whether publishing in print, broadcast or online – should be qualified and subject to a balancing test that weighs freedom of the press and the people’s right to know against other potentially conflicting values, such as national security and the grand jury process.