August 2, 2007

Congress Aims to Extend Shield Law to Bloggers

Here's some good news for bloggers - and for the First Amendment: A House panel voted Wednesday to shield journalists from having to reveal their confidential sources in many situations - and extended the protection to bloggers who derive "financial gain or livelihood" from their blogs.

By a voice vote only after politicians spent nearly two hours airing various misgivings, the U.S. House of Representatives Judiciary Committee approved an amended version of the Free Flow of Information Act. Chiefly sponsored by Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.), it proposes protection for a wider set of people than previous years' versions.

"Today, we are reclaiming one of the most fundamental principles enshrined by the founding fathers in the First Amendment of the Constitution," Committee Chairman John Conyers (D-Mich.) said before the vote.

In response to concerns raised by the Bush administration and other politicians, the revised bill attempts to exclude the "casual blogger" from reaping those benefits by stipulating the protections apply only to those who derive "financial gain or livelihood" from the journalistic activity, Boucher said Wednesday. That broad rule could, however, include part-time writers who receive even a trickle of revenue from Google Ads or Blogads.com.

The bill defines the practice of journalism as "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."

"To extend the shield beyond (those who gain financial benefit) would create an avenue for virtually anyone to avoid compelled testimony by simply creating a blog that contains the information in question," which is not the bill's intent, Boucher said.

But in an age in which it's relatively easy and inexpensive to slap advertisements on blogs and meet the "financial gain" standard, several politicians questioned on Wednesday whether that language will make much of a difference. Anyone "could start a blog and request advertising on that blog, and whether they get it or not, would be considered a journalist under this bill," Rep. Adam Schiff (D-Calif.) said.

Such a definition "would potentially encompass millions of people who blog or change the manner in which they blog (to gain the privilege)," said Rep. Bob Goodlatte (R-Va.), adding that the shield is "far too broad and far too easily gained for me to support that language."

Both Boucher and Pence said they sympathized with those complaints and planned to work on changing the definition further before the bill goes to a vote in the full House. Conyers proposed assembling a "working group" to work out the differences. The bill's supporters had previously resolved to leave it up to the courts to refine the journalist definition as necessary, rather than running the risk of excluding certain people by narrowing the scope beforehand.

It would be far better if the legislation was written to protect journalism rather than journalists. Here's what I mean: journalism is a craft that, as the bill correctly describes, involves a number of news-gathering and publishing steps. A blogger who does those things is doing journalism even if their blog doesn't accept advertising. On the flip side, a self-declared "journalist" who doesn't do those things isn't doing journalism even if their publication does accept ads.

To illustrate it, I often do journalism here at BillHobbs.com - I gather information and report it using basic journalistic methods - and those blog posts are "journalism" regardless of whether or not the blog also carries ads.

Congress should simply say that "the people" have the right to shield confidential sources if those sources are part of a journalistic project, regardless of whether or not the person in question accepts money from advertisers.