Bloggers, Media Shield Laws, And The First Amendment

Should bloggers be treated the same as "journalists" for the purpose of the protections granted by media shield laws?

Doug Mataconis · · 17 comments

In an appearance yesterday on Fox News Sunday over the weekend, Illinois Senator Dick Durbin discussed the issues raised by the Justice Department’s investigations into leaks and the manner in which they have arguably intruded upon the ability of journalists to do their job:

llinois Sen. Dick Durbin pondered the constitutional protections that are afforded bloggers, wondering in a recent media appearance whether media shield laws apply to this type of journalist. Mr. Durbin said to Fox News host Chris Wallace that he doubted whether bloggers, or “someone who is Tweeting,” should be given media shield rights. He also said he was reluctant to request an outside special counsel look into the Associated Press snooping charges swirling around Department of Justice Attorney General Eric Holder, Breitbart reported. Mr. Durbin said, Breitbart reported: “Here is the bottom line – the media shield law, which I am prepared to support … still leaves an unanswered question, which I have raised many times: 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?”

Here’s the video of the relevant portion Durbin’s appearance, with a transcript:

But here is the bottom line–the media shield law, which I am prepared to support, and I know Sen. Graham supports, still leaves an unanswered question, which I have raised many times: 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? We need to ask 21st century questions about a provision in our Constitution that was written over 200 years ago.

Many on the right have interpreted Durbin’s words to mean that he was questioning whether or not bloggers and similar “citizen journalists” have First Amendment rights. For example, here’s how Ed Morrissey put it yesterday:

Here’s what the First Amendment actually says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Press at the time would certainly have meant newspapers, which were the high-tech information revolution of the day. It would also have included pamphleteers, perhaps even more than newspapers, as pamphleteers helped drive revolutionary sentiment. Their modern-day analogs would arguable be bloggers and Twitter users, those who reported news and proclaimed opinions outside of the establishment press. However, Durbin’s asking the wrong question. The question isn’t who gets protected, but what. Journalism is not an identity or a guild, but an action and a process — and anyone engaged in that activity must be treated equally before the law. A shield law based on membership via employment in privileged workplaces or certified by guilds doesn’t protect journalism, it becomes rent-seeking behavior that ensures that only the large players get protected,

There are really two separate points being addressed here. The first one is whether bloggers, along with people who post on Twitter, Facebook, and other social media sites, have First Amendment rights. The answer to this question is, self-evidently, absolutely yes because, at the very least, these forms of communication would be considered a form of speech that would be protected under the First Amendment. In other words, there is no need to address the question of whether or not bloggers should be considered “journalists” for purposes of the First Amendment.

Indeed, I think that in the end Durbin wasn’t really talking about the First Amendment at all, but about the question of how far “journalism” should be defined for the purposes of media shield laws. The confusion created by Durbin’s remarks, obviously, came into play when he asked a question like “Are these people journalists and entitled to constitutional protection?” while discussing a Federal Media Shield Law. In reality, there really isn’t a Constitutional issue raised by such laws and the First Amendment is largely irrelevant when it comes to a discussion of media shield laws. For example, no Court that I am aware of has ever accepted the argument that the First Amendment’s protection of “Freedom of the Press” means that journalists are entitled to refuse to reveal the identity of their sources in Court or some other official proceeding. That’s why 39 states have adopted some form of a media shield law that protects journalists in those situations, and why a journalist like Judith Miller went to jail for contempt for refusing to reveal the source of the Valerie Plame leak because there presently is no shield law under Federal Law. Most of these laws came into existence after the Supreme Court ruled, in Branzburg v. Hayes 408 U.S. 665 (1972) that there was no automatic privilege granted to reporters based on the First Amendment.

In recent years, there’s been a tremendous amount of debate over how far the protections granted in these laws should extend, and to whom they should extend. Traditionally, these are protections that extended to journalists working professionally in the field in some way and, indeed, many state shield laws are written in such a way that their application is restricted to “professional journalists.” In other states, the question of who the law applies to is much more open ended and judges are often required to make a determination as to whether or not the law applies to people like bloggers who fall outside the world of traditional journalism. In New Jersey in 2011, for example, the State Supreme Court determined that bloggers who don’t have some connection to the “news media” are not covered by that state’s shield law. That same year, an Oregon judge ruled the same way in a case involving a blogger from Montana. On the other side of the ledger, an Illinois Judge ruled in 2012 that certain bloggers could be covered under that states shield law, and there’s another recent case from New Jersey that found that a woman who blogged about local and county politics was protected by the state’s shield law. There have also been moves in some state legislatures to update shield laws to extend their protection to people who are not a part of the traditional media.

It’s definitely worth debating the extent to which shield laws at the state level, as well as any law that Congress may debate at the Federal level, extends to those who are not part of the traditional media. The media landscape has changed significantly since these shield laws were first enacted in the early 1970s, and there are now plenty of people in the “new media” who are performing roles that are just as important as what traditional journalists do. For example, it was a bunch of bloggers who discovered that the memos that CBS News relied upon to support its story about George W. Bush supposedly ducking out early on his National Guard commitments were forgeries. That report, you’ll recall, came out at the height of the 2004 re-election campaign and threatened to have a major impact on the election. Instead, it ended up having a major impact on the careers of several CBS News employees, including a man who had been anchoring the CBS Evening News for more than 20 years. For reasons like that, it’s important that we make sure that shield laws don’t end up being something that only cover members of what essentially amounts to a protected cartel while bloggers and free-lancers are left out.

At the same time, as I’ve noted before, the law does tend to disfavor testimonial privileges, especially in cases involving compelling competing interests. In the cases that we’ve been talking about recently, the competing interest involves the government’s interest in keeping secret information secret and protecting intelligence sources around the world. Granted, as I noted yesterday, there are often times when information is classified that shouldn’t be, however it’s also true that there is information that should remain secret for the good of the nation’s interests. Notwithstanding that, though, the Justice Department’s recent actions would seem to make clear the need for a shield law at the Federal level rather apparent. That appears to be in the works now, and the AP and Fox News Channel stories will likely create bipartisan support for such a bill. While it’s drafting such a law, though, Congress needs to be careful that it doesn’t create a law that ignores the manner in which “journalism” have changed in the 40 years since the Supreme Court sent this issue to the legislatures. Blogger aren’t always “journalists,” perhaps, but they often are and on those occasions they ought to be treated the same as their more traditional colleagues.