Will Laws to Protect "Press" Harm Other Web Writers?

By Sean Gallagher  |  Posted 10-12-2005

Can bloggers be considered "journalists"? That question has been the source of a lot of debate, and it's one that may take on a slightly different flavor shortly. Congress is preparing to consider a law that will likely legislate who can be called a "journalist."

And Senator Richard Lugar, one of the sponsors of the bill, thinks that probably won't include bloggers.

If that's the case, a law posing as a protection of journalistic integrity could turn out to have wide-ranging effects on any individual or organization that publishes content expressing any sort of message, explicit or implicit, regarding current events. Regardless of whether you're an individual blogger, an e-marketer, a media corporation, or someone selling t-shirts on CafePress, there's reason for you to take notice.

Congress and the Federal government, like most institutions, is having a hard time dealing with the fact that the Internet and participatory media have turned everyone into the media. The Fourth Estate used to be pretty well-defined--the guys who owned the broadcast licenses and the big pressses were the "media", period. But now, the definition isn't so clear anymore--so some in Congress feel the need to legislate one they're comfortable with.

The Lugar bill, the "Free Flow of Information Act of 2005", was born in response to the embarrassment surrounding the Judith Miller affair. It seeks to protect journalists from imprisonment for failure to divulge notes, recordings, or sources, much like the protection offered to attorneys' work product.

While many states have long-standing journalist shield laws (Maryland passed the first in 1896), the protection is far from universal--and they all have had to deal with the question of who can call themselves a journalist. None of them explicitly protects writers who ply their trade on the Web. The FFIA, however, does, as Mark Fitzgerald of Editor & Publisher reports:

According to the first draft of the Free Flow of Information Act of 2005, the "covered person" protected by the bill's terms includes "any entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that publishes a newspaper, book, magazine, or other periodical in print or electronic form; operates a radio or television station (or network of such stations), cable system, or satellite carrier, or channel or programming service for any such station, network, system, or carrier; or operates a news agency or wire service." The legislation also covers employees, contractors or other persons who "gathers, edits, photographs, records, prepares, or disseminates news or information for any such entity."

In other words, you're a journalist if you work for an established media business with a lawyer on retainer to argue that you are one, or if you go through some sort of registration process.

Some journalists already enjoy privileges not extended to the general public. Not everyone can get a press pass to talk to police at a crime scene, or ask the President a question (well. there are some notable exceptions that prove the rule). No bloggers were officially embedded with troops when the Iraq War began (though there were and are plenty who managed to embed themselves, and cover the War deeper than traditional media.

But regulating who can be called a journalist for the sake of legal protection is another matter entirely. It would be another step down the road toward regulating free speech in ways that gut the spirit of the First Amendment (and the Fourteenth, for that matter, by instituting a separate standard for individual and selected corporate speech.

There's already at least one example of non-traditional media coming up hard against subpoena power-- the case of Vanessa Leggett, a woman writing a book about a Texas murder who was jailed for 168 days when she resisted a subpoena of her tape-recorded interviews. The 5th Circuit of the U.S. Court of Appeals upheld her jailing for contempt, calling her a "virtually unpublished freelance writer operating without an employer or contract for publication"--meaning she would probably not be protected by the Lugar bill.

But the definition set by the Lugar bill could set precedent that extends far beyond subpoena powers. Take, for example, the Federal Election Commission's proposed new regulations could potentially seek to regulate political speech on weblogs, based on how a "press exemption" would be applied to bloggers--particularly, people who derive some sort of income from weblogs.

The danger that the FFIA creates is one of precedent: any legislative definition of who can be considered "press" could potentially factor into how the press exemption (which allows the media to not have to claim coverage of politics as indirect campaign contributions, subject to a limit) is applied. Courts could use any case resulting from the FFIA as precedent when dealing with election regulations or other law where the nature of speech is in play.

In a world where the very nature of the media is being redefined daily, it's important to remember that any legislation directed at the media affects you--because you are the media. Even a law intended to promote free speech like the FFIA could create a chilling effect.