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JOURNALISM SHACKLED
Should the Federal Sheild Law cover online reporters and bloggers

"Sunshine Week," the newspaper industry's annual effort to promote open government and the free flow of information, draws to a close today.

And as it happens, a hugely important legal protection journalists need as they shed light on Washington's work -- commonly known as the "Shield Law" -- remains stuck in limbo.

The Free Flow of Information Act, which would in many cases protect journalists from having to identify their confidential sources in federal court, has stalled in the Senate over a question that all journalists are asking these days: What is a journalist?

Some, like Sen. Charles E. Schumer, D-N.Y., want the bill to include a broad definition -- one that would offer protections to bloggers and first-time authors as well as print and broadcast reporters.

But others, most notably Sen. Dick Durbin, D-Ill., and Sen. Dianne Feinstein, D-Calif., worry that the bill crafted by the Senate Judiciary Committee cuts too wide a swath -- and could end up protecting propagandists and public-relations people as well as scribes.

Ironically, the who-is-a-journalist debate comes after the committee narrowed the scope of the bill, adding exclusions aimed at making sure journalists would not be shielded from revealing their sources in terrorism, national security and certain criminal cases.

That latest disagreement has prevented the bill from going to the Senate floor for three months now, meaning the Senate has failed to act for a full year after the House approved a similar measure.

Negotiations are under way to try to resolve the dispute and define who is covered by the law in a way that satisfies all those senators.

But in the meantime, journalists across the country continue to run the risk of being subpoenaed, fined or even jailed, as zealous prosecutors and aggressive private-sector lawyers look to force them to betray the confidential sources who are sometimes essential to exposing wrongdoing.

And if the Senate stalemate continues, journalists could continue to face those dangers for years to come, even as the definition of the term "journalist" continues to evolve as more bloggers and self-styled citizen reporters get into the game.

"I've always felt like that's where we were going to get hopelessly hung up," said Charles N. Davis, an associate professor at the Missouri School of Journalism and the executive director for the National Freedom of Information Coalition. "It feels something like a game-ender, and that's too bad."

***

If it seems that the very issue of the shield law has disappeared from sight in recent months, it's largely because the Senate Judiciary Committee's Dec. 10 approval of the measure, in a bipartisan 14-5 vote, masked an unusual split that's now keeping the bill from the Senate floor.

One of the five no votes was Durbin, the second-ranking Democrat in the Senate and, coincidentally, both Schumer's Capitol Hill roommate and a potential rival in a race for majority leader if Sen. Harry Reid, D-Nev., loses his bid for re-election.

Reid was not about to bring to the Senate floor a bill that Durbin opposed, sources close to the issue said. And for that reason, the Judiciary Committee vote really meant back to the drawing board for Durbin, Schumer and the shield law.

Durbin's case was clear. In his view, and Feinstein's, the shield bill covers way too many people as purported journalists.

Under the current version of the Senate bill, anyone who regularly gathers, collects, writes and records information on paper or in electronic form would be shielded.

In other words, white supremacists who blog and Capitol Hill press secretaries could be considered journalists under that definition, Durbin argued, as could Sen. Charles Grassley, an Iowa Republican who often posts his thoughts to Twitter.

"This definition is no definition at all," Durbin said as the committee approved the bill. "It's so broad as to be meaningless."

Schumer -- who authored that definition -- stressed that the broad language was necessary to guarantee that editorial columnists and freelance journalists would be covered by the law, and other supporters argued that a broad definition was necessary to protect book authors.

"The idea that every press secretary or leaf letter is going to invoke this -- it's not going to happen," Schumer said at the hearing.

Durbin and Feinstein offered an amendment to the bill that would have changed the definitions of journalist in the bill to cover any employee, contractor or agent of an entity that disseminates news and information.

To be covered under their amendment -- which failed -- one would had to have worked for at least six months of the previous two years as a journalist.

Obviously, that definition would have left legions of bloggers and first-time authors uncovered by the shield law. Now, though, Durbin and Schumer have put aside that argument and are trying to find common ground.

"They're trying to come up with a definition of who's covered that he [Durbin] can tolerate," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

And Schumer, for one, expressed confidence that the bill will go to the floor and win passage.

"This bill is a well-balanced solution to a problem that has vexed journalists and law enforcement officials for decades," Schumer, its chief sponsor, said last week. "It provides clear guidance for when journalists can protect confidential sources, and when they can't. We are continuing to build support for the bill before bringing it to the floor."

***

As Schumer works to do that, experts in communications law point to the real world of journalism in 2010 -- and the real-world court cases reporters have suffered through -- as guideposts.

The narrow definition offered by Durbin and Feinstein doesn't look forward into a future that's clearly going to include all sorts of journalism, said Davis.

Noting that "anybody can become a journalist tomorrow," Davis envisioned a day when individual journalists sell their stories via PayPal. Such independent operators deserve the same sort of protection as reporters who work for the traditional -- and mightily struggling -- mainstream media, he said.

Dalglish said negotiators are trying to make sure that political gadflies, or single-issue gadflies, don't get the same protections as traditional journalists under the bill.

For that reason, negotiators are leaning toward making sure that anyone covered has some sort of track record as a journalist, said Paul J. Boyle, senior vice president of public policy for the Newspaper Association of America.

Boyle stressed, though, that the current broad definition does not mean that anyone who would claim protection under the shield law would automatically get it.

"It only gives you the ability to go before a judge, who will decide whether the person is covered," Boyle said.

Davis agreed, saying: "I think we should stop worrying about who a journalist is, and start being concerned about what journalism is. Courts can define murder. They can define life. They certainly should be able to define journalism."

Supporters of the shield law also said critics should stop focusing on hypotheticals and take a close look at what's happening without a shield law:

In 2006, two San Francisco Chronicle reporters were charged with contempt of court for refusing to reveal their source for stories they wrote about professional athletes purportedly using performance-enhancing drugs. The charges were dropped only after their source pleaded guilty to obstruction of justice for leaking the grand jury documents that told the story.

That same year, Judith Miller, then of the New York Times, went to prison for three months when she refused to identify her source in a story she wrote about the Central Intelligence Agency. She was freed from prison only after her source, Lewis "Scooter" Libby -- Vice President Dick Cheney's former chief of staff -- agreed to let her break her vow of confidentiality.

In 2008, former USA Today reporter Toni Locy faced fines of up to $500 a day -- that she would have had to pay without help from her company -- when a federal judge cited her for contempt of court for refusing to reveal her sources for stories about Steven Hatfill, a onetime suspect in the 2001 anthrax terror case.

Those sorts of things probably would not happen in state court in the 49 states that have some sort of protection for journalists who rely on confidential sources to do their work.

But in federal court, it's open season on journalists -- meaning the public suffers as a result. The lack of a federal shield law makes federal bureaucrats far more reluctant to provide important, but sensitive, information to journalists who are out to expose corruption, open-government advocates said.

"All of those people are at risk," Davis said. "All it takes is the wrong fact pattern" for them to be targeted as leakers.

What's more, particularly in civil cases, the people who sue to get journalists to reveal their sources are "not necessarily angry at the press," said Andrew Alexander, the ombudsman at the Washington Post and a longtime leader of Sunshine Week. "This is really about who disclosed the information. They go to the reporter and say: You need to tell me."

No one knows that better than Locy. She found herself under pressure to disclose sources for stories she did questioning the government investigation of Hatfill.

"I made a concerted effort to be as fair to him as I could possibly be, and as skeptical as possible about the investigation," she said. "And for this I was threatened not only with the poorhouse, but with the jailhouse."

An appeals court eventually threw out the fines against Locy, but not before the incident changed her mind completely about the protections journalists need.

"For 25 years, I didn't think [the shield law] was necessary," she said. "I thought the First Amendment was enough. I wish we weren't living in a time when this sort of law was necessary, but we do. I'm realistic. I lived it."

-mail: jzremski@buffnews.com

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