Shield Law for Whom?

Bloggers in Legal Limbo?


The 81st session of the Texas Legislature accomplished something amazing. (Unlike North Carolina, it has not passed a measure banning smoking in public places. Geez.) It did, however pass HB 670 and Governor Rick Perry signed it effective immediately. What is HB 670? It is a “shield law” partially protecting a journalist from prosecution for refusing to reveal a source in a published story.

An Austin American-Statesman editorial Friday hailed its passage. “The governor has taken his lumps from the media and no doubt will take more. But in signing the shield bill into law he placed the public interest above his own.” The bill will protect journalists from lazy prosecutors who might wish to go on a fishing expedition for information known to journalists rather than exhausting all possible sources of information through their own first-hand investigation. Only then, after coming up empty handed, might a court force a journalist to reveal a source. The bill provides partial protection for whistle-blowers too. Thirty-six states and the District of Columbia have such a law. The stated purpose of the law is to “increase the free flow in information and preserve a free and active press and, at the same time, protect the right of the public to effective law enforcement and the fair administration of justice.”

Sounds good, right? Hmmm. I’m not so sure. With this post you see the Clan Macnab coat of arms which might appear on a shield. The Clan Macnab motto? “Let Fear Be Far From All.” Some of us may have reason for fear.

The newspaper has news, their reporters have blogs (the content of which sometimes turns into news in the next day's paper), and they offer blog space for anybody with a comment. Television anchors and reporters have blogs. Some use them, often for promotion. The shield law, however, as passed does not contain the words blog or bloggers. The law seems inclusive referring to an “interactive computer service” or “Internet company” that “disseminates news or information to the public by any means … known or unknown, that are accessible to the public.” While the law does not mention blogs, the bill analysis does. The bill, it says, “would provide certain legal protections to some journalists and not to others, setting up a kind of licensing system that would protect journalists who practice the craft for significant financial gain, while leaving out many amateur bloggers.”

In other words, the shield law "protection" could draw a distinction between people who write blogs or web logs and “journalists.” I have always been ambivalent about a shield law because it can bring journalists under specific rules of law and at the same time it protects sources. Further, if the shield law only recognizes mainstream media, a legal line is drawn.

First Amendment scholars both rejoice and ruminate about blogs and their place in the free flow of information. There are literal millions of blogs with more posting every day. You have the topical blogs. You are looking at one of them. Blogs like NewsMcNabb attempt to contribute to the “body knowledge”. I do fire off a screed every now and then, but I also try to break news about what's going on in the media. Others do simply sound-off on whatever is bothering them that particular day. This form of communication will only increase. In fact, some scholars put the sum and agency of blogs in the front row of the future of journalism. In fact, some say this form of “news” is rooted in the past.

For several years Congress has considered a federal shield law for reporters. “In October 2005, the Senate Judiciary Committee held a second hearing on such proposed legislation. At the hearing [former Texas Attorney General] Sen. John Cornyn, R.-Texas, said that there needed to be a “serious discussion of what constitutes the term ‘reporter.’”

“At our last hearing, one of our witnesses described
bloggers as the modern-day equivalent of the revolutionary pamphleteer who
passed out news bulletins on the street corner,” Cornyn said.

“However, the relative anonymity afforded to
bloggers, coupled with a certain lack of accountability, as they are not your
traditional brick-and-mortar reporters who answer to an editor or publisher,
also has the risk of creating a certain irresponsibility when it comes to
accurately reporting information.” (David L. Hudson, Jr., www.firstamendmentcenter.org).

Cornyn has been an advocate of open government at both the state and national level.

So, it comes down to this question: Who is a journalist? The Texas law and others attempt to define a journalist based on income, “a person, including a parent, subsidiary, division, or affiliate of a person who for a substantial portion of the person’s livelihood or substantial gain, gathers, compiles, prepares, collects …” etc. Well, I have Google Ads on my site. The legal definition also includes someone who “was a journalist”, so I guess I’m golden. Once a journalist, always a journalist? Certainly, I am not making a lot of money from this endeavor. So, am I in the eyes of the law a journalist? I believe that I am still a journalist. I think I have almost always been a journalist since I started keeping a journal as a goofy kid of eleven or 12.

I also will assert that there are those working for brick-and-mortar, mainstream media who may have the job, but lack the credentials to be called a journalist. That could be said of any profession.

Nowadays, public information officers also struggle with the definition of a journalist. Are bloggers serious fact-finders and truth-tellers or are they hacks with an agenda. If reporters are the eyes and ears of the public, are all writers welcomed in the news conference or in the privileged places afforded the mainstream media?

Beyond defining who are journalists, the biggest problem remaining is the anonymity and resultant lack of accountability for some bloggers, issues ignored by HB 670, the new Texas Shield Law. Trust me. A court will decide these issues if a future legislature does not. The resulting case law may be worse than the new Texas shield law.

© Jim McNabb, 2009