Journalists' Protection Bill Passes Senate Judiciary: Are Bloggers Covered?

A bill attempting to reconcile a journalist's right to protect its sources with the federal government's need to know timely and critical information, passed the Senate Judiciary Committee yesterday, but not without more exceptions having been added to the original House version. Still, the bill continues to define journalists rather loosely, leading some to believe federal protection could yet extend to independent, often solo bloggers.

Specifically, S. 2035, the Free Flow of Information Act, doesn't even use the word "journalist." Instead it refers to a person covered by protections of the Act, and defines that person as someone engaged in journalism. It then defines "journalism" as "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."

The bill also extends that protection to an employer, supervisor, colleague, and even a parent of such a person, though strangely not to a spouse - although arguably spousal privilege is already guaranteed by law. It also prevents the government from being able to subpoena a journalist's ISP for the same information without first notifying the journalist.

By refraining from defining a journalist as someone employed by an institution that publishes or broadcasts a product for the masses, the bill may purport to offer some federal protections to anyone who can prove he or she is engaged in the act of journalism, for any purpose. Such a definition would diverge sharply from existing case law, and would almost certainly guarantee scrutiny from the Supreme Court, where that existing law was first decided in 1972.

Back then, in the landmark Branzburg v. Hayes case, a Jefferson County, Kentucky reporter covering the local drug trade there refused to divulge the names of the anonymous individuals he wrote about, to local and state investigators and then to a grand jury. A state appeals court eventually upheld reporter Branzburg's right to keep those subjects anonymous. But the Supreme Court overturned that finding, using language that mixed the term "journalist," "reporter," and "newsman" back in an era where the distinctions didn't appear all that great.

"We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof," the majority wrote, "on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not."

Fast-forward to July 2005, when video blogger Josh Wolf chronicled an anti-globalization rally in San Francisco. In his video, a police officer was shown being injured by demonstrators, and his vehicle being damaged. A federal court subpoenaed Wolf not only to turn over his original footage but also his computer to a grand jury. Wolf steadfastly refused, and would spend the next 226 days in prison for contempt, until a deal was reached in April 2006 enabling his blog to publish the unaired portion of his footage but relieving him from having to testify.

Wolf's defense was that, as a journalist, he was granted by law certain protections and privileges against being compelled to reveal sources. Such protections are often thought to be constitutional, though indeed the US Constitution contains no such clause.

But US District Judge William Alsup struck down that defense not on the grounds that Wolf was merely a blogger, but on the notion that journalists are guaranteed any privilege at all, citing Branzburg v. Hayes. As Judge Alsup wrote - even citing the mixed language first rendered in 1972 - "The U.S. Supreme Court said there is no journalist newsman's privilege under the First Amendment."

Can even a ruling that denies privileges to journalists withstand legal review if even the very phraseology of "journalist" can't be nailed down? The matter was first taken up by the previous Congress, though that session became mired in an historic level of inactivity. This year, the Free Flow of Information Act was re-introduced as an attempt to finally legislate a definition that resolves the question of journalist's identity in the modern era, as well as providing some rights and privileges.

In a statement released yesterday, the bill's primary sponsor, Sen. Arlen Specter (R - Penn.) spelled out the Act's promises: "This legislation establishes a federal reporters' privilege to protect and encourage the free flow of information between journalists and confidential sources. It seeks to reconcile reporters' need to maintain confidentiality, in order to ensure that sources will speak openly and freely, with the public's right to effective law enforcement and fair trials."

But that reconciliation, it turns out, may be a little lopsided after all. As the Senate language reads now, "In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to provide testimony, or produce any document, relating to protected information, unless..." And the unless part is pretty significant.

For instance, in the case of a criminal investigation or prosecution, "there are reasonable grounds to believe that a crime has occurred." In such an investigation, the information sought may be beneficial not only to the prosecution but also to the defense. Or perhaps the information may be beneficial to the national security.

But even that loophole doesn't match the enormity of the alternative exception through which, conceivably, a barge full of trucks parked side-by-side could cruise through without scraping the paint. If the information is not being sought in conjunction with an investigation - for instance, if somebody in authority simply wants it - then the exception enables that information to be compelled from a journalist if it "is essential to the resolution of the matter."

"In order to balance these competing interests," Sen. Specter writes, "this bill creates a qualified privilege for reporters to withhold information they obtain under a promise of confidentiality...The bill also contains exceptions to the privilege for those situations where information sharing is critical. A reporter may not withhold his source information where it is needed to prevent a terrorist attack, significant harm to our national security, death, kidnapping, or substantial bodily harm. Journalists who witness crimes also cannot refuse to share their eyewitness observations."

In an op-ed piece for the Washington Post yesterday, former US Solicitor-General Theodore Olsen supports the bill in its entirety, including its exceptions. "The legislation would not give reporters special license beyond the type of common-sense protection we already accord to communications between lawyers and clients, between spouses and in other contexts where we believe some degree of confidentiality furthers societal goals," Olsen wrote. "This legislation is well balanced and long overdue, and it should be enacted."

Nonetheless, anyone who may have been under the impression that this bill would protect Josh Wolf and others like him in the future, may be awakening to some new realizations. Video bloggers everywhere should perhaps be asked, are you sure you really want to be journalists?