Last week, First Judicial District Court Judge James Wilson ruled – rather incorrectly, I believe – that the difference between a journalist and “just” a blogger is purely a matter of whether one pays dues to a random private organization purporting to represent “The Press.” It matters, of course, because a mere blogger must tattle on and reveal his sources if hauled before a tribunal or even a deposition, while an Official Reporter can stand silent under Nevada’s “shield law.”

The hue and cry from various press organizations was immediate, robust, and sincere – but also a little self-serving and short-sighted. The proposed solutions, almost all of which would simply redefine “reporter,” would not solve the problem. Instead, it merely gives government more power, not less, over the free exchange of ideas that the First Amendment was intended to protect.

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Almost all evidentiary rules we have in our various court systems are just statutes that can be changed at any time, and that includes almost every law you’ve ever heard of that protects you from testifying against someone else if called. In most cases, the law says that neither your doctor nor your accountant nor your counselor nor your spouse can be compelled to testify against you, but there’s no constitutional right implicated by such rules.

Some have some due process or First Amendment overlap, like attorney-client or confessor-confessant privilege. But most do not, including the reporter shield law. If the Legislature decided tomorrow that reporters have to squeal on their sources or face some jail time for being in contempt of court, they could do it without offending the First Amendment.

This is because the First Amendment applies to everyone. Especially in the internet age, any one of us can (and often are) “the press.” We publish information (often mixed with opinion) to the world through our blogs or social media accounts, and some of us even spread that information by word of mouth. To that end, we are all “reporters” as far as the First Amendment is concerned. Loads of that information is misleading or wrong, but then, plenty of “real” journalists have published false information deliberately or when they should have known better, and to a far wider audience than your crazy uncle sharing gibberish from his “Occupy Tea Party Socialists of America” Facebook page. That some reporter of any kind somewhere has made a mistake does not obviate the need for the shield law for every other reporter.

We as individuals can and should distinguish between reliable news sources and any old crank with a website. But cranks with websites are sometimes plenty reliable, and professional newspapers sometimes aren’t. A hunger for more (and more diverse) sources of information is why new online publications like The Indy, ThisisReno (which first reported on Judge Wilson’s order), or CarsonNow (just to name a few) are flourishing. Judgments about the quality of our news should and must be left to consumers of that information, not some government agent who gets to decide what news is real or worthy or fake or whatever. And that’s the problems with Nevada’s shield law.

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As a matter of law and statutory construction, I respectfully believe Judge Wilson’s conclusions to be in error. He did not understand the phrase “press association” meant news reporting organizations like the Associated Press or United Press International, not trade organizations like the Nevada Press Association. He also defined “newspaper” in an overly strict way which is both nonsensical in 2019 and subverts the clear historical intent of the law, which is to promote and encourage both more information flow and more whistleblowing. And in Nevada, our Supreme Court has long held that clear legislative intent should govern a judge’s statutory interpretation in cases where the actual language of the statutes seem to be at odds with that intent.

But the real problem isn’t that he got the definition of “reporter” wrong (that can and should be fixed on appeal), it’s that the Legislature put him in the position to define “reporter” in the first place.

Whatever the government regulates, the government controls. If the Legislature wants to limit the shield law to dead tree publications only, or to only those who pay dues to an “official” organization, they could. (They shouldn’t, but they could.) Maybe some of you are comfortable letting the likes of Donald Trump or Kelvin Atkinson decide who should receive such official sanction, but I’m certainly not.

I appreciate the professional, full-time journalists who bring high quality news reporting to us every day, and so should you. We need them, and more of them. But I also appreciate the part-timers who find other ways to publish information. Maybe it’s to put their concerns on the record during a public comment session of a committee or regulatory board, with the intent that one’s fellow citizens will hear about it. Maybe it’s posting about an accident on social media. Maybe it’s a crank with a blog (I have a special place in my heart for those cranks, having been one), who has some inside knowledge or unique insight, or just happens to be places where a newspaper employee isn’t. To the extent that these folks do some whistleblowing of their own, they deserve protection too – no matter who they work for, or to whom they pay dues.

It is the act of journalism that needs the protection of a shield law, no matter who is doing the reporting, or which organization the reporter works for. To only protect those who meet government approval as an Officially Approved Journalist is to subvert not only the purpose of our particular journalist/source shield law, but of the First Amendment itself.

It’s time the Legislature update our shield law, not just to account for the Internet, but to include anyone publishing information in a public way.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]