By Dan Kennedy • The press, politics, technology, culture and other passions

Proposed Mass. shield law appears to protect bloggers

The Massachusetts Legislature this week will consider, once again, whether journalists should be protected from subpoenas ordering them to give up their confidential sources or turn over unused notes, video footage and the like.

According to Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, the bill, called the “Free Flow of Information Act,” will be the subject of a public hearing before the Joint Committee on the Judiciary on Tuesday at 1 p.m. The bill is being sponsored by state Rep. Alice Hanlon Peisch, D-Wellesley.

In an era defined by blogging, social media and citizen journalism, one of the key questions that comes up whenever shield laws are discussed is who should be covered. Many of us argue that it’s journalism, not journalists, that should be protected, and that if a lone blogger is able to convince a judge that she’s engaged in bona fide journalism, then she should be covered just as fully as someone who’s on staff at the Boston Globe.

Fortunately, the bill being considered this week appears to allow for exactly that. I’ve asked Ambrogi for clarification (he has since weighed in, below), but what I’m looking at is the definition of “news media,” which is described in the bill as follows (my emphasis):

[A]ny newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.

The bill specifies very strict protection for anonymous sources and less strict protection for unused notes, footage and other materials accumulated in the course of newsgathering but not actually used. That’s in accord with longstanding legal tradition, so no surprise there. There’s an exception “to prevent imminent and actual harm to public security from acts of terrorism” as well.

Ambrogi reports that Massachusetts is now just one of 10 states that does not have a shield law. But the state’s Supreme Judicial Court has recognized a limited right for reporters to protect their sources. In fact, the only state with no shield protection whatsoever is Wyoming.

By far the most significant gap is the lack of a federal shield law, compounded by the U.S. Supreme Court’s 1972 ruling in Branzburg v. Hayes that journalists do not have a constitutional right to protect their sources. That gap has been exploited by federal authorities in states where journalists would otherwise have shield protection — such as the cases of Jim Taricani in Rhode Island and Josh Wolf in California.

The bill being considered this week has come up before, and I don’t know whether there’s any more reason to think it will pass now than it has in previous years. Personally, I’m lukewarm on shield laws, since they can give an already-skeptical public reason to believe that the media are a privileged class.

But the Massachusetts bill appears to be carefully drafted, and would do no more than level the playing field with respect to most other states.

Instant update: I just heard from Ambrogi, who confirms that the bill would give citizen journalists a chance to argue that they should be entitled to shield-law protections as well — although he cautions that the word “business” might mean they have to be “at least trying to derive some income from the citizen journalism.”

Discover more from Media Nation

Subscribe to get the latest posts to your email.


Andrew Breitbart’s mixed legacy


Don’t sell Scott Brown short


  1. You wrote: “if a lone blogger is able to convince a judge that she’s engaged in bona fide journalism, then she should be covered just as fully as someone who’s on staff at the Boston Globe.”

    And:”I’m lukewarm on shield laws, since they can give an already-skeptical public reason to believe that the media are a privileged class.”

    There seems to be an elitist tone to those statements. People have the RIGHT to seek and discover information, and express what they have found with their voices or in writing to be publicized. They also have a right to have an opinion and express it. These are natural, inherent rights that we have as human beings.

    The very reason for the First Amendment is to protect all people from the State’s suppression of ideas, opinions and uncovering of information that the individual, the investigator, researcher, reporter etc. has found or believes to be true.

    Having to “convince a judge,” a State-employed judge that is, that one is “engaged in bona fide journalism” goes against the very spirit of the First Amendment. We should not want agents of the State to decide who is a “journalist,” a “reporter,” etc.

    Should the Occupy Wall Street protesters have to get a State-employed judge’s permission to record the cops’ brutality and pepper-spraying assaults on videotape and upload that to YouTube?

    Should Julian Assange have to get George W. Bush and Obama’s permission to release actual documents that show gross incompetence, corruption and even war crimes on the part of these bureaucrats who have destroyed much of the Middle East and are recklessly crushing our civil liberties?

    One thing that helped to even get a Bill of Rights included in the U.S. Constitution was the Anti-Federalists’ ability to get their ideas of skepticism and their principles of individual rights out there for public discourse, by ANONYMITY and with pseudonyms, as a means of protecting their lives, property and families from those who held or aspired to positions of power. The Anti-Federalists had to protect themselves from those who wanted the central State to be a powerful ruler.

    The Anti-Federalists foresaw what a police state America would become, but they still did not stop it.

    • Dan Kennedy

      @Scott: What you are calling for is nothing less than the end of the constitutional and common-law requirement that we all must appear in court and testify when called to do so. Is that what you want to do? Far from being elitist (and trust me, I am an elitist in many other areas), I’m arguing that citizen journalists should be able to claim the protection of a shield law. But there has to be some criteria for what constitutes journalism. Otherwise, anyone who sends pictures to Twitter will be able to claim that he doesn’t have to testify.

      You know what is fully consonant with the spirit of the First Amendment? No shield protection for anyone. As you rightly note, the First Amendment is for everyone, not just journalists. Justice Byron White put it very well in Branzburg v. Hayes in arguing why journalists should not be allowed to protect their confidential sources:

      The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

      Although I am, as I said, lukewarm on shield laws, I recognize that the protection of confidential sources can result in some social good. I think we need some protection for today’s “lonely pamphleteers,” which is why I oppose protecting only those who work for recognized news organizations. But it’s pretty obvious that you can’t just extend shield protection to anyone who goes to a protest and takes cellphone pictures.

  2. I have said it before, so why not one more time. There is no such thing as citizen journalism or citizen journalist, any more than there are citizen doctors, or citizen medicine.
    As journalist, we trained professionals, some with advanced degrees in our field, and to believe that anyone who logs on to a website is a journalist is an insult to the professional community.

  3. Larz Neilson

    Having been hauled in on a fishing expedition, I am in favor of a shield law. Lawyers’ questions tend to be so pointed as to twist meaning. They want a yes or a no, and they do not want to hear “but. . . ” They’re often not interested in discovering the truth — they just want to build a case.

    I’m less concerned with the public considering the media to be a privileged class than with potential whistle-blowers beliefs that they can speak to a reporter in confidence. The knowledge that a reporter can be subpoenaed has a chilling effect on exposing situations that might otherwise remain secret.

    Should bloggers be included? I’d say yes, but that might cost some legislative support, with concern that virtually anyone could refuse to testify.

  4. I’m not sure the privilege should be absolute. The Branzburg case is pretty good on defining just when a reporter may be compelled to give up a confidential source: when the information is central to the case; when it is not available anywhere else; and when the state has an overriding interest in the matter. That said, journalists have always known that the price of refusing to divulge a confidential source may pay the price of a few days in the slammer for contempt of court. Uncomfortable, scary, yes, but, in the final analysis, not the worst thing for building a career in serious journalism.
    I do agree that the government shouldn’t be in the business of defining who is and who is not a journalist. What’s next, licensure?

    • Dan Kennedy

      @Margie: The problem with the Branzburg decision is that the balancing test you describe is in the minority opinion. The majority opinion said no, period. In recent years the courts have been less shy about pointing that out.

  5. Dan Kennedy writes: “But it’s pretty obvious that you can’t just extend shield protection to anyone who goes to a protest and takes cellphone pictures.”

    Oh? Why not?

    And Margie is correct: “the government shouldn’t be in the business of defining who is and who is not a journalist.”

    And then asks, “What’s next, licensure?” Check out these items:

    And also, bloggers should be protected as much as newspaper and TV reporters, editors and producers. What if a witness or whistleblower goes to a local blogger with information rather than to the local TV station?

    Time and again, the real “compelling State interest” turns out to be the protection of the State’s power, and that of its agents.

Powered by WordPress & Theme by Anders Norén