Defining Moments

Most states have shield laws aimed at protecting journalists from harmful subpoenas, but are they protecting everyone they should?

From the Winter 2008 issue of The News Media & The Law, page 22.

By Matthew Pollack

More than 35 years ago, Justice Byron White warned that this would happen.

In partially explaining his hesitance in extending a reporter’s privilege based in the First Amendment to journalists in Branzburg v. Hayes, White wrote that "sooner or later, it would become 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."

Since the Supreme Court denied that privilege in Branzburg, 34 states and the District of Columbia have passed shield laws to protect journalists from being hailed into court to divulge information about their sources and the newsgathering and editing process.

True to White’s forecast, the legislatures have struggled to define the class of journalists protected by the laws.

As a result, many individuals who are arguably members of the press are left without the traditional protections accorded to other journalists. Depending on the approach taken by a state legislature, bloggers, freelancers, college journalist and film makers in particular face all of the harms that come with subpoenas while performing the same role as their brethren in the professional main stream media.

Notably, the majority of state shield laws extend protections only to those reporters represented in traditional media. For example, Arkansas restricts its covered class to "editors, reporters, or other writers for any newspaper, periodical, or radio station" and Kentucky limits its coverage to "newspaper, radio or television broadcasting station personnel."

Aside from curiously excluding some traditional forms of media such as television stations in Arkansas or magazines in Kentucky, both of these statutes exclude bloggers, documentary film makers and potentially freelance writers from the rank of journalist.

Other states restrict their shield laws to cover only professional journalists who rely on their craft for their livelihood. In Delaware, the shield law applies only to journalists who earn their "principle livelihood" through their reporting or individuals who spend at least 20 hours a week as a reporter. Similarly, in Florida, a journalist can only claim protection under the shield law if they are a professional journalist; that is, "a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news for gain or livelihood."

In these circumstances, both college journalists and bloggers are often left to fend for themselves without the protections a shield can provide.

A third group of states instead picked up on the expansive understanding of the press that White first hinted at three decades ago. Rather than restrict the bounds of their shield laws based on the medium used to communicate information or the financial compensation of the journalist, these states instead focus on the function of the covered class. For example, in Nebraska, any person "engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public" is entitled to protection under the statute.

Shield laws from this third group are among the most inclusive, extending protections to all forms of journalism.

Kurt Opsahl, an attorney with the Electronic Frontier Foundation who focuses on bloggers’ rights, points out that this method avoids the arbitrary distinctions at play in the other archetypes.

"A journalist is someone who conveys news and information to the public," Opsahl said. "Blogging is a tool to accomplish that; it is a way of conveying information to the public just as using a printing machine and newsprint is a way of conveying information to the public."

It may be that states simply need a test case to recognize the problems with more restrictive definitions before accepting a more progressive one.

In 1986, the Michigan Court of Appeals ruled that a television reporter could not claim protection under the state shield law because the previous incarnation of the law specifically referred only to "newspapers and other publications." Later that year the legislature amended the law to include a more functional definition of journalism.

As many mainstream media companies have begun publishing blogs to complement and supplement their more traditional offerings, Opsahl hopes that states will follow suit in extending their definitions.

"This is an evolving process," Opsahl said. "I think few people will argue that shield laws should not apply to someone who is concededly a journalist who happens to be blogging online for traditional media, and there is not much of an argument that online only media organizations should not be covered. Hopefully that will usher in a more inclusive understanding of journalism."