Issue 1: The Shield Law
(Note: This is the first in a series of posts about this topic by Kelsey Browne & Ariel Fox)
What is a blogger? The myriad ways in which blogging takes shape make definition difficult. Ranging from online diaries to overt advertisements to community newssites, blogs send forth a wide range of varied speech into the world. How should this speech be regulated, and how should such regulations be reconciled with the First Amendment? As with non-internet speech, questions of who the speaker is, and what the context and subject of the speech is, remain paramount. But these questions –particularly the speaker’s identity and in what context he or she is speaking—become quickly complicated by technology and its ability to blur lines and spaces.
Blogs run the gamut from the most classically protected political speech to less protected commercial speech. Within this realm there are students speaking, employees speaking, and people speaking who have no desire to reveal their identities. Some blogs and bloggers are easy to categorize, but many are not. Bloggers are thus a diverse and disparate group. This disunity can frustrate blogger efforts to effect legal, legislative, and regulatory schemes that treat them in a manner that is fair, consistent, and transparent. In an effort to better understand bloggers and their constitutional rights, we will be exploring how bloggers have fared with the First Amendment, and how, in an ideal world, the First Amendment would apply to blogs and bloggers.
One major question is: when are bloggers journalists, and therefore deserving of the speech protections and evidentiary privileges journalists receive? Journalists enjoy constitutional privileges under the First Amendment regarding the disclosure of confidential sources, but they have also been granted more clear and specific statutory protections, derived from their special First Amendment status (see Protecting the New Media). These statutory protections at the state level provide broader protections to journalists. Whether bloggers should receive specific statutory protections of the press is an issue receiving a lot of attention given the potential passage of the Federal Shield Law. The House has passed a version of the law, but the Senate seems unable to come to an agreement on the definition of a journalist. A large measure of the holdup deals with concerns that just anyone—like any blogger—can be a citizen journalist, and the DOJ would prefer to not grant Shield Law protection to every member of the U.S. The House’s bill only protects those who engage in journalism “for a substantial portion of the person’s livelihood or for substantial financial gain,” and while the Senate’s initial bill was more expansive, protecting those engaged in “journalism,” a recent amendment by Sen. Chuck Schumer (D-NY) narrowed that as well, focusing on issues of financial relationships and the employer of the speaker. Such narrowing of the definition of journalist was criticized, to put it mildly, by supporters of citizen and other volunteer journalists, who may not be earning their livelihood from the news they report but may be just as deserving of Shield law protection. Just this past week, the Obama administration and key legislators came to a compromise position that would protect certain unpaid bloggers. The compromise grants lesser protection to journalists when certain national security interests are at stake, but expands the definition of protected people to those whose “primary intent” from the beginning of reporting and newsgathering is “to disseminate to the public news.”
Should bloggers be considered journalists for the purposes of a Shield Law? Should it depend on a blogger’s “primary intent”? The difficulty in defining who would qualify for such a potentially expansive specific privilege is one of main arguments made against it by the Supreme Court in the landmark case Branzburg v. Hayes. Writing in 1972, the Justices noted that defining a “newsman” would be “a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer … just as much as of the large metropolitan publisher.” Indeed, freedom of the press is a fundamental right that encompasses any publication that “affords a vehicle of information and opinion.” The Founding Fathers placed high importance on encouraging public discourse and providing access to a marketplace of ideas, thus granting such a freedom to anyone with a printing press.
It could be said that bloggers are the “lonely pamphleteers” of today, with their ability to self-publish and to widely disseminate information to the public. Some scholars have said that the Internet is a “living embodiment” of the marketplace of ideas that closely resembles what the Founding Fathers envisioned. In a way, the notion of “the press” as anyone with the ability to self-publish has returned to its original conception, or even expanded upon it. It was not until the second half of the 19th century that the “press” began to resemble the type of mainstream media as we know it today, as organizations with employees that systematically gather and produce news. It was later still, in the 20th century, that professional societies and unions were developed, and the press came to be recognized as a “collective enterprise.” The freedom of the press as the Founders saw it was not the “freedom of journalists to pursue their craft,” but the “freedom of people to publish their views.” And with the advent of the Internet, anyone with access to a computer can become a publisher.
But does the ability to publish on the Internet necessarily mean one is a journalist, commensurate with the standards and privileges that might be associated with journalism today? Surely the marketplace of ideas is far wider and more diverse in today’s society than the Founders could ever have imagined. Given that so many people nowadays can self-publish, every citizen could be considered a member of the press. While the Founding Fathers might have sought to extend First Amendment press protections to all who published, including lonely pamphleteers, it is less clear that they intended specific statutory privileges against testifying to follow. If the Federal Shield Law covered all bloggers, it would apply as equally to the 16-year-old girl blogging on LiveJournal about the outfit she wore to school as it would to a seasoned investigative reporter
who works for an online publication with an editorial process and a reputation to protect. This question is extremely important considering a Shield law can prevent a reporter from testifying about anonymous sources. What could stop a politician from leaking information to an ally who then blogs the information and claims protection under the Shield Law? Instead, in framing the statutory privilege, it is necessary to look, not at the literal interpretation of what is meant by the “press,” but at what function is serves within a democracy, and at how this function has evolved over the last 220 years. It may be that while bloggers are consistent with the First Amendment notions of the press, this does not necessarily mean that their freedom to publish translates into the special privileges that legislators have afforded to journalistic newsgathering. While the development of new media complicates the definition of a “journalist,” there are factors–not limited to initial and primary intent–that should be considered to determine who should receive a journalist’s statutory privilege, and to differentiate the middle ground between those who use blogs for personal use and those who use them to provide news necessary to a functioning democracy. We will begin to address these factors in our next post.