Bloggers and shield laws

One of my media-law students called my attention to this article in Editor & Publisher about efforts to draft a federal law that would protect journalists from having to give up their confidential sources. The upshot is that Sen. Richard Lugar, the Indiana Republican who’s co-sponsoring the legislation, says those protections would probably not be extended to bloggers.

“As to who is a reporter, this will be a subject of debate as this bill goes farther along,” Lugar was quoted as saying at a media conference. “Are bloggers journalists or some of the commercial businesses that you here would probably not consider real journalists? Probably not, but how do you determine who will be included in this bill?”

The article, written by E&P’s Mark Fitzgerald, notes an additional difficulty: the problems inherent in defining who’s a journalist and who isn’t would necessarily lead to government licensing of journalists, whether anyone would dare call it that or not.

Lugar says he was moved by the plight of New York Times reporter Judith Miller, who, as we all know, served 85 days in jail recently before she was given leave by her White House source, Lewis “Scooter” Libby, both to identify him and to discuss their conversations with respect to the Valerie Plame investigation. (At least that’s Miller’s version of what happened. Howard Kurtz has a good piece in today’s Washington Post on how the uproar over Miller’s credibility is affecting the demoralized Times newsroom.)

But it’s unimaginable that any shield law would be strong enough to allow someone like Miller to remain silent. That’s because the U.S. Supreme Court found in 1972 that there is no constitutional right for a reporter to protect his or her confidential sources if called on to do so as part of a criminal investigation. The decision, Branzburg v. Hayes, was muddled enough that it led many judges to use a balancing test, calling reporters to testify only if the information they had was crucial and there was no place else to get it. But even if that balancing test had been used, Miller probably still would have been called. And an absolute shield law could be struck down as an unconstitutional encroachment on the Sixth Amendment right to a fair trial, among other things.

Still, some form of federal shield law would be welcome. Every state except Wyoming either has a shield law or a state court decision recognizing a limited right by reporters to shield their sources. The questions, then, remain: Who’s covered and who isn’t? And what about the bloggers?

I think the solution is to protect journalism rather than journalists. If a blogger is engaged in something that can clearly be defined as journalism, then she should enjoy the same rights and protection as a card-carrying member of the MSM. It’s absurd to think, for instance, that a professional journalist such as Josh Marshall, who writes the blog Talking Points Memo, could be denied protections extended to Miller and Time’s Matthew Cooper.

I realize that if deciding who’s a journalist is difficult, determining what journalism is could be even more vexing. Certainly you’d need some guidelines. And, as another one of my students pointed out, you’d have to make sure that the shield didn’t extend to someone who set up a blog solely for the purpose of avoiding the grand jury.

But judges have to make these kinds of decisions all the time. Surely it would be better to handle it on a case-by-case basis than to exclude all bloggers from whatever protections Congress might pass into law.