Who is a Journalist?

It sounds like such a simple question. What makes you a journalist?

In American society, we all have the same right to free speech. Yet many states have shield laws protecting "journalists" from having to reveal their sources. This issue has come up recently on the national level with people asking about a national shield law in the wake of the recently wrapped up Judith Miller case.

New York is such a state, and considering the number of media outlets that operate within its borders, this is probably a good thing. So how does New York define a journalist? A "professional journalist" is

...one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

There are a number of interesting qualifiers here. My favorite is as someone who provides information "for gain or livelihood..." in other words, you have to make money doing this. How many bloggers out there make nothing for their work but do it for the love of writing or finding things out? What if one of these finds themselves with a “source” who provides some sensitive information? Could this person duck behind the shield?

A bigger question for me is “would they?” But let's explore that another time.

Another interesting definition in this of "news," which is defined as

...written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.

Obviously, many bloggers wouldn't fall into this catetory. Yes, a blog about a person's homelife is interesting, but it certainly wouldn't meet the standard of "matters of public concern" or "affecting the public welfare."

But there are certainly blogs out there that do meet this standard, such as Lisa Williams' H2OTown.info. She's a citizen who started a blog about local information. She's been interviewed on "Open Source" about the hyperlocalization of news, has been invited to events as a member of the local media and is part of the "power blogger" set. BUT, does she make money at this, or is it a hobby? And if it's a hobby, does she qualify?

Also, what falls under the definition of “public welfare”? And does a blog have to meet this criteria outside of the article that would be the subject of that particular court battle?

I guess these vagaries are what make the law the law. So I posed the question to someone much more experienced than I am, Vincent Blasi, professor at both Columbia Law School and the University of Virginia School of Law. I took his class as a journalism student in the early 90s, which he taught with Anthony Lewis, who was then writing the "Abroad at Home" column in the New York Times.

Professor Blasi agrees that as court cases come up, this will test the definition of a journalist and he agrees that a blogger/journalist probably deserves the same protection as a newspaper or broadcast journalist. However, he believes that the courts may create a rather narrow definition, but not because of any reason that you and I may expect.

…most courts are hostile to shield laws and construe them narrowly whenever the language permits -- and sometimes even when the language would seem not to permit. So I would predict that many courts would simply say that “journalist” means someone who writes for traditional publications and that if bloggers are to be protected, the legislature will have to change the statutory language to make that clear.

It'll be interesting to see how the courts handle this and whether they even approach the issue when it comes up.

But if bloggers want to benefit from the shield, we may have to first organize, then try to update the law.