Thursday morning, the Senate Judiciary Committee adopted language proposed by Senators Specter, Schumer and Graham which will treat blogger-journalists as equals when it comes to the protections of a federal press shield, the evidentiary privilege which allows journalists in most states to protect the confidential sources when the prosecutors come asking.
As we discussed yesterday morning, the original language had stated that the persons protected by the shield would include persons engaged in "the regular 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."
And so while I believed that the 'regular' qualifier was sufficient to sift between legitimate blogger-journalists and folks opportunistically using the Internet to leak information for other purposes, the new language is slightly more restrictive, but not that bad. Instead, it now protects a person who:
(i) 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, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by—
(I) conducting interviews;
(II) making direct observation of events; or
(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;
(ii) has such intent at the inception of the process of gathering the news or information sought; and
(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means.
What this wordy new definition is getting at, I think, is what I'd call the Lane Hudson Problem (not that Lane's a problem, of course, and I'm glad to call him a friend). But at the time that he obtained the Mark Foley emails/IMs and started publishing them on his new Stop Sex Predators blog, he wasn't yet established as an online journalist in the way he is now, and so I can understand what Senators would be leery about extending these protections to something like that leak given its being the first major journalistic act Hudson performed. This definition would have excluded that publication from the shield's protection (and thus required Hudson to testify as to his sources based on a valid subpoena), but would certainly protect Hudson now as well as folks like Josh Marshall and Marcy Wheeler who regularly rely upon confidential sources for their reporting.
A number of other amendments were voted on Thursday not affecting this definitional question, and the bill as a whole has yet to be voted out of Committee because of Republican concerns about the shield's overall impact on national security, and there is much debate to be had as to when this shield must yield to law enforcement needs. But make no mistake that this is a step forward -- if federal law is going to protect "journalists" from revealing their confidential sources absent a substantial showing, then online journalists are just as worthy of whatever protection is extended as are their establishment colleagues.