Sep 152013
 September 15, 2013  Posted by  Featured News, Laws, Online

Watching the Senate Judiciary Committee (SJC) hearing on the “Free Flow of Information Act” (reporter’s shield law), I was concerned by remarks made by Senator Dianne Feinstein. The Senator offered an amendment that would restrict the shield or privilege to those whom she considers “real reporters.”  Senator Cornyn argued persuasively – but not persuasively enough, it seems – that Congress should not be in the business of defining “journalist,” a point that has been raised by others, including EFF, who argue that it would be better to define “journalism” than “journalist.” Despite the opposition from Cornyn and other Republicans on the committee, Feinstein’s amendment passed 13-5 and the bill made it out of committee, leading me to tweet:

To my surprise, media lawyer Kurt Wimmer replied:

In follow-up e-mail communications, I encouraged Kurt, who’s a partner at Covington & Burling, to blog about the bill and how it affects bloggers/citizen journalists.  Kurt had been honored for his work in trying to get a reporter’s shield law several years ago, and his firm is part of the coalition trying to get FFIA passed. Although some might see that as a reason not to trust his interpretation of the language of the bill as amended, I think it’s exactly the reason that we should consider his interpretation of the language seriously.  In the interest of full disclosure, I should also note that I also have tremendous regard for Kurt and his dedication to representing the rights of bloggers because he and his firm represented me and when this blog was sued a few years ago.

And so Kurt and Jeff Kosseff have written a blog post on InsidePrivacy about the bill, as amended. Here’s an excerpt from what they wrote:

Some blogs and new (sic) reports have erroneously stated that the FFIA would only cover “credentialed” or salaried journalists who work for mainstream media.  The legislation, in fact, provides strong protection for new-media journalists, including bloggers.

The FFIA covers individuals who gather news and information for the public, regardless of their medium.  The protection applies equally to new media, such as blogs, web sites, and news apps, and traditional media, such as newspapers, magazines, and broadcasters.   The bill states that it covers journalists who distribute news “in print, electronic, or other format,” and it explicitly mentions websites and mobile apps.

You can read their full post here.

To supplement their post, I asked Kurt whether he thought the term “regular” in the second definition of “covered journalist” (below) posed any concerns for citizen journalists/bloggers:

(bb) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, engages, or as of the relevant date engaged, in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters by—

Kurt responded:

“Regular” has a fairly straightforward definition in the case law, and we expect that there also may be some legislative history that will put some more definition around that concept. In my own view, so long as it is the general practice of the blogger in question to gather information for publication to the general public or engage in the other activities mentioned in that section, a blogger should be covered. The reason for that section generally is to ensure that the bill covers people who really engage in journalism, rather than people who just luck into information that they want to keep away from law enforcement. This has been true of efforts to protect confidential sources, dating back to a gossip columnist sued by Judy Garland in 1959. The test, which the Second Circuit formalized in the Von Bulow case, focuses on whether the subject was engaging in journalistic activities at the time the confidential source material was obtained. Otherwise, someone who isn’t a blogger or writer at all could claim to be starting a blog, writing a book, or marketing a script when confidential information happens to fall into their lap. That’s never been covered under the federal common law privilege or any of the state shield laws, and this bill would be consistent with that concept.

I also asked Kurt for his reaction to criticism by EFF and others that the bill would be better if it focused on defining “journalism” instead of “journalist.” He responded: 

I was actually puzzled by EFF”s criticism — it’s as if their writer hadn’t read the Senate bill. The section of the bill that we have been discussing actually does define journalism. Those who are covered under the bill are those who meet that test. So in my view, the Senate bill (both the original version that EFF wrote about, and certainly the bill now as amended) really does focus on defining “journalism.” Those covered are those engaging in journalism. I don’t know how else you can do it, given that the rest of the bill depends on identifying a particular person who then has the benefit of the privilege set out in Section 2 of the bill — at some point, you have to decide who is “covered.”

If Kurt’s correct, that would be good news for bloggers like myself or those who file under FOI to obtain information to incorporate in their coverage of topics of public interest, or who reach out to news sources to get comments on current news stories.. Of course, the shield law doesn’t protect any journalist absolutely as there are exemptions built into the bill addressing national security concerns and other issues. But if, as Kurt and Jeff assert, the federal law would protect bloggers when state laws don’t, we may be gaining some protections we did not have.  Kurt also sees the bill as providing more protection in some highly publicized cases:

… this bill would apply, if it is passed quickly enough, to Jim Risen’s case in the Fourth Circuit, in which he is in imminent danger of being jailed because of his attempt to protect a confidential source in the Jeffrey Sterling prosecution. It also would have prevented the AP subpoena, and the Fox News/Jim Rosen subpoena.

That will be of small comfort, though, to organizations like WikiLeaks and Cryptome who are seemingly intentionally excluded from coverage. Matt Drudge, who might be described as a news aggregator rather than a reporter or someone who conducts original interviews or investigation, also seems to think he’d be excluded from coverage. He tweeted:

Federal judge once ruled Drudge ‘is not a reporter, a journalist, or a newsgatherer.’ Millions of readers a day come for cooking recipes??!

I asked Kurt what changes, if any, he would like to see in the bill when it comes up on the Senate floor? He replied:

There are some elements in the House version of the bill that I do like, and it would be great if those might become a part of the Senate bill. The House bill, in particular, covers all journalistic work product, not just confidential source information. That’s pretty important, because maintaining the confidentiality of the work product of journalists is an essential element of protecting free expression. For the most part, though, I think the Senate bill reflects a careful balancing of a lot of competing values.

Obviously, this is a controversial bill and many will not agree with Kurt’s interpretation or view. So have at it in the “Comments” section if you wish.


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