As journalists lobby for a federal shield law, they should also be concerned about the legal rights of bloggers, a national blogging advocate said during the 2007 SPJ Convention & Journalism Conference on Oct. 6.
“Unless blogs have legitimate financial resources defending them like publishers, they run the risk of being picked off one by one,” said Robert Cox, president of the Media Bloggers Association.
Cox argued that journalists, instead of viewing bloggers as competition, should work with them to protect freedom of speech for all. The association has estimated that bloggers have lost $17.2 million in legal judgments so far in 2007, likely reaching $20 million by the end of the year.
Cox said he is concerned that bloggers may not be protected as strongly as journalists under the proposed federal shield law, formally known as the Free Flow of Information Act. The law would establish federal standards that limit the power of federal authorities to force journalists to testify or turn over notes and names of unnamed sources.
The House version, passed 398-21 on Oct. 16, would cover people who gather news for financial gain or for a substantial portion of their time, said Laurie Babinski, counsel to SPJ and a lawyer at Baker Hostetler in Washington, D.C.
“So some blogs may be covered. Take (Matt) Drudge. He would clearly be covered because he does it regularly and for financial gain,” she said.
Babinski said the law will ultimately be subject to interpretation by the courts, which will have to address what constitutes a substantial portion of time. The courts will also have to decide where the profit threshold is with regards to financial gain, she said.
“What about the person who gets $20 a week off Google ads on their blog? The courts will likely decide that is not substantial,” she said.
SPJ President Clint Brewer said the organization supports a broad definition of a journalist in the federal shield law.
“It’s like any other law, where it’s got a gray area and has to be tested by the courts,” he said. “SPJ and I favor the broadest definitions of journalism and journalists. This is a starting point, and we’re in favor of seeing this law passed.”
The Senate is discussing the role of bloggers in its version of the federal shield bill. Babinski said some senators have serious concerns about giving bloggers federal protection, citing a lack of acceptable professional standards and codes of ethics.
“Their thinking is, ‘Why cover people who are not held to the same ethical standards as professionals,’” she said.
Babinski said the thinks the Senate may write in a very narrow definition of journalism and journalists, but she said she doubts such definitions will stay in the final version of the bill.
“Personally I don’t think they can make it any more narrow,” she said.
She said some senators have argued that the Department of Justice guidelines regarding subpoenaing journalists are sufficient, but Babinski said reporters should be concerned about that argument.
“I’m still more comfortable with a judge (deciding on issuing subpoenas) than the DOJ,” she said. “There’s a heavy presumption with the DOJ being OK.”
Even if the Senate passes the shield law, it faces strong opposition from the White House. White House spokesmen have said the law could encourage leaks and make it harder for the government to prosecute terrorism cases. White House officials have warned of a veto if the bill reaches President George W. Bush.
The Media Bloggers Association was formed in 2004 to help develop blogging as a separate media form. Cox said the majority of litigation against has been filed in California, mainly for defamation and copyright infringement.
“If you blog and live in California, move,” he said.
About one-third of all cases against bloggers are dismissed or dropped, Cox said, but only after bloggers have incurred significant financial costs. The majority of cases against bloggers involve topics such as dissatisfied customers, personal and education feuds, cults and religion, sex, gossip and real estate.
Because of the rising number of cases against bloggers, Cox reiterated that journalists should stand together with bloggers.
“To separate is wrong,” he said. “We have more to gain as a group because ultimately, the same issues affect everyone.”
In a perfect world, Brewer said, a federal shield law and squabbles over the definition of journalists would be unnecessary.
“I’d like for us not to even have one. I’d like federal prosecutors to stop doing what they’re doing. I hope politicians will recognize that the majority of states already have (shield laws),” he said. “People want journalists to be able to do their jobs. I’d like to see this broadly applied and purely to the act of journalism.
“I’d like to see it apply to acts, not the types of journalists,” he said.
Rebecca Neal, a reporter at The Indianapolis Star, covered the 2007 SPJ Convention & National Journalism Conference for Quill. She can be reached at (317) 444-2710.
