Shields for Bloggers?

Yesterday's NY Times contained an editorial urging the Senate to take action on a bill---already passed by the House---that would, for the first time, grant federal protection to journalists to protect their sources. As the Times notes, the House version of the bill already permits the shield to be pierced for a criminal investigation or prosecution, where other means of obtaining the information have been exhausted (and in some other circumstances), and that the Senate version might be still more permeable.

Not surprisingly, the Times editorial does not identify what may be a substantial omission from the bill, because it is an omission that does not work against the Times. The bill would only provide protection for people who earn their living as journalists. Here's the definition of a "covered person" from the House bill:
a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person. [Boldface added by MCD].
Does that include, say, me? I think so, but only because I get paid for my columns on FindLaw's Writ. I "regularly . . . write" about legal issues "for substantial financial gain," and so I'm covered, and presumably that coverage protects me even if the piece I happen to be writing is not "for substantial financial gain," i.e., a blog entry or a law review article for which I'm not paid. So, if this bill becomes law, I can offer confidentiality to a source for a blog entry, but only so long as I'm still writing my FindLaw column.

That's a fairly peculiar rule, although it's not hard to see why the House came up with it. With millions of bloggers out there, some filter is needed to prevent anybody and her uncle from claiming to be a journalist (or "covered person") who is given the extraordinary power to shield sources (at least presumptively) from the prying eyes of the law.

Whether "financial gain" is the right filter is debatable. Do we really want a rule that gives bloggers protection if their blogs have advertising (and enough readers to generate "substantial" revenue) but not if they're simply pro bono? I strongly suspect that "financial gain" is functioning here as a proxy for something like "takes the position seriously." It's a very imperfect proxy but it has the virtue of administrability. Rather than cross-examine a blogger claiming the shield about her intentions, courts applying the shield law could just look at her receipts.

Still, it's at least a little ironic that at just the moment when the institutional/professional press is losing its hold on the generation and dissemination of information, Congress may enact a law that, for the first time at the federal level, distinguishes between the professional press and citizen journalists. Or perhaps the timing is not coincidental at all?

Posted by Mike Dorf