Who is a Journalist part 2

It looks like the issue of legally defining the rights of blogger/journalists may be closer to coming to a head.

At a speech on Monday covered by Editor and Publisher Senator Richard Lugar, who is sponsoring a federal shield law, said that bloggers would not as of now fall under the definition of a "journalist."

As quoted in the story:

"As to who is a reporter, this will be a subject of debate as this bill goes farther along," he said in response to a question from Washington Post Deputy Managing Editor Milton Coleman. "Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?"

And how is a journalist defined in the bill?

...an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--

(i) publishes a newspaper, book, magazine, or other periodical;

(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or

(iii) operates a news agency or wire service;

(B) a parent, subsidiary, or affiliate of such an entity; or

(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.

This definition certainly takes away some of the vague language that exists in the New York law, but is that fair? If this bill should succeed, should the definition be even tighter than the state laws?

How do you determine who will be included? I had an email exchange about this with Anthony Lewis, the former New York Times columnist and author of several books on the law, including the iconic Gideon's Trumpet.

He's not a fan of the shield law, even as he notes that the Times supports it. "Do we really want to immunize potentially millions of Americans from legal process?" he asks. It's a question that gave me pause.

Apparently Lugar agrees, deciding instead to maintain to a more traditional view of a journalist. But this creates other problems, as the Editor and Publisher story points out. If the government is defining a journalist, then that is basically like giving out licenses, something no journalist would support.

Lewis weighs in on this, as any good professor would, by sending me back to the books:

In Branzburg, Justice White's opinion of the court warned about the difficulty of defining journalist. We strongly, and rightly, resist the idea of any official license--which in many places is a form of governmental control.

But how else is the beneficiary of a shield law to be chosen? By the courts? That is, will judges draw your nice distinction between different kinds of bloggers? I think myself that the development of the internet has made Justice White's objection far more daunting.

So I went back to the original opinion to see what White had to say back in 1972:

The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

The opinion goes on to point out that freedom of the press is a "'personal right' which is 'not confined to newspaper and periodicals.'"

Do we really want to be messing with something so personal?

I think we should bury the shield. Yes, a journalist's most key asset is the ability to gain information, especially information that may otherwise be hidden. But, remember that any source generally has a reason for talking, and that reason is often far from altruistic.

The most famous of the secret sources, Deep Throat, never came to light since the testimony he would have provided never became necessary. To their credit, Woodward and Bernstein had a series of other sources to back up what they were being told secretly, Watergate was not a single-source story.

Still, in the absence of information Mark Felt was ascribed certain altruistic characteristics. Were his motivations so noble? The recent news about his background certainly makes the issue far more murky.

So let's not be too quick to grant a shield for some people to hide behind, and instead look at who is telling what stories and why.