Shield Law's Details Raise Concerns -- For Journalists

By: Joe Strupp While the latest version of a federal shield law is moving ahead with promise, as a Senate committee voted this week to pass it along to the full governing body, some elements of the proposal remain controversial and unclear.

Among those are the definition of a journalist and an exemption to source protection for national security issues.

In both the current Senate and House versions of the bill, the definition of journalism is stated to be ?the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public? with those protected by the law to include ?a person who is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such person.?

Such definitions would appear to include even the smallest independent Web site or newsletter, observers say, with no requirement for an income stipulation or minimum audience.

?Anyone who is routinely practicing, whether in print, broadcast or on the Internet, and can demonstrate they have an audience of some sort are going to have a very good shot at demonstrating they are a journalist,? says Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press. ?I am happy with that definition.?

Others, such as Keith Woods, dean of faculty at The Poynter Institute, noted concerns about such a broad definition, saying it could prompt abuse by non-traditional media seeking protections. But he said the broader approach is best when seeking to break through the federal shield barrier. ?That is a problem, but that is all it is,? he told E&P. ?It is not an excuse to stop. There is a strong need for a federal shield law for journalists. That it is difficult to nail down a job description is not a reason to stop.?

David Westphal, Washington editor for McClatchy, also sided with the broader definition, claiming it can be worked out once the law is passed. ?Early in this discussion, the question of who is a journalist felt like a fundamental stoppage to the whole thing,? he said. ?First Amendment supporters felt it was too critical to let this definition of a journalist trump the idea. The approach has been to get as broad a read on it as possible.?

But the broad definition may not stick. Rep. Rick Boucher (D-Virg.), a co-sponsor of the House version -- which passed through committee six weeks ago -- plans to introduce a measure that would sharply define a journalist.

His change would define it as someone with ?a substantial portion of income? from journalism or someone who ?maintains his livelihood through the exercise of journalism efforts.? Boucher told E&P that the narrower definition is needed to stop someone who ?in an effort to evade a subpoena sets up a blog.?

?Being a journalist is clearly defined [in the current legislative form] but the question was would anyone who does this even to a small extent qualify?? he told E&P. ?We have said it has to be regularly and you have to earn your income from it.?

But Boucher added, ?a person who blogs regularly and earns substantial income would qualify. Someone like Drudge or another established blog.?

Max Frankel, the former executive editor of The New York Times, says seeking to define a journalist in any terms is risky. ?It is a big problem,? he says of the legislation. ?Is David Halberstam a journalist or not when all he does is write books? Can you take a blogger or a professor of history? Trying to define the rules of the road is very fraught with difficulties.

?We are in an era where the very definition of news and news distribution is exploding,? he added. ?Who qualifies as a gatherer of news is one big problem to be defined by the future and I suspect the law will drag behind it.?

Frankel, who was the Times? Washington bureau chief during the Pentagon Papers dispute in 1971, cited the shield law?s exemption for national security issues, too. ?That is where most of the problem is,? he said. ?The Pentagon Papers is proof that at the highest level, most judges get wobbly in the area of national security.?

Westphal agreed that a national security exemption would lessen the protection, but said it was worth it to have the overall law approved. ?That does not protect reporters involved in national security cases as much as reporters not involved in national security cases,? he said. ?But the language at this point, we are prepared to live with.?

No dates have been set for the Senate or House versions to be considered by the full bodies. But both are expected to be taken up again before the end of the year.