It also applies to that person's boss or employer — but not to that person if he is a terrorist.

Under this definition, as The New York Times pointed out, bloggers would have been covered. They regularly have been under state shield laws, too. In April, New Jersey extended shield protection to the owner of a local government blog.

But a lot has changed since the last time the Congress ruminated on the question. That was a time period in which Tumblr was young, Twitter saw a fraction of its current use, and Facebook had only 350 million users. Compare 2009 data on social media use with 2012. Web publishing is common to the point of ubiquity — making the definitions used in 2009 even less pertinent. What, for example, counts as "regularly" gathering information? Does Tumblr count as one of the dissemination mechanisms? Does news require more than 140 characters?

Senator Dick Durbin of Illinois isn't sure Twitter should be included in such protection. Appearing on Fox News Sunday last month, Durbin asked the same question as Graham. As transcribed by the Outside the Beltway blog:

What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?

The problem is perhaps best illustrated by example. Let's say that a person regularly shares news stories over Twitter. He looks for interesting articles, composes a summary and a link, tweets it out. One day, a friend who works for the government sends him a classified document. The person puts that up on a file sharing site and tweets a link with a description of the file. Does that person deserve protection as a journalist? If he posted it to his blog where he comments on news items, would he then? What if he worked for Fox News, but not as a reporter?

Another example: A woman who doesn't usually tweet about the news shares a photo of the failure of a top secret weapon, sent to her by a friend in the military. Should she be protected? Is a person who stumbles onto something newsworthy a journalist?

There are clearly non-traditional media outlets that people would agree deserve protection. The Huffington Post was invited to Attorney General Eric Holder's off-then-on-the-record discussion about improving the government's rules around media investigations, for example. But in 2009, even the standard proposed in the Senate's legislation didn't pass muster in the House. As Zach Seward wrote for the Nieman Journalism Lab at the time, the House version strictly limited protection to those employed by traditional outlets.

[A]ccording to the Reporters Committee for Freedom of the Press, Sen. Chuck Schumer (D-NY) offered an amendment to the Senate version that hews toward the professional definition in the House. …



As I observed last week, the shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job.

(The question of student journalists was well covered by USA Today last month.)