Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Dianne Feinstein and Dick Durban are proposing a very bad amendment to a journalist shield law being considered in the Senate. The bill, SB 448, according to the Congressional Research Service:
Prohibits a federal entity from compelling a covered person (journalists and their employers, etc.) to testify or produce any document relating to protected information unless a court makes specified determinations by a preponderance of the evidence, including that all reasonable alternative sources have been exhausted, that the testimony or document sought is essential, and that nondisclosure would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
A good and very important law to protect sources, but it should apply not only to professional journalists but to amateur ones as well. The relevant portion of the amendment Feinstein and Durban are offering would limit this only to those who are paid to do journalism rather than those who are acting as journalists:
In section 10(2)(A), strike clause (iii) and insert the following:(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity--
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, 1or other means; and
(II) that--
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
(cc) operates a programming service; or
(dd) operates a news agency or wire service;
Again, very bad idea. And Feinstein and Durban should be criticized for the idea. But the reaction from some corners of the conservative blogosphere is hysterical.. Hot Air, for example, leaps to all kinds of unwarranted conclusions over the issue. The Democrats, he claims, are "criminalizing dissent." And it's all a plot to attack right wing blogs:
This would seem to be aimed at the likes of James O'Keefe and Hannah Giles - provided they're not employed by a Major News Outlet, of course.Leaving aside the obvious indication that this is the Democrats' way of circling their wagons around ACORN - this is a fascinating look into the authoritarianism of the Democrat party at work.
The conservative blogosphere is dominated by independents who cover their fields of expertise, whatever they are (this blog: music, financial planning, wine, tomatos and Minnesota politics) for the pure, unadulterated love of the game. From Power Line (which covers all they survey) to Speed Gibson (who patrols the ramparts of northwest-suburban education), we mostly do it because we want to, money be damned.
The left, on the other hand, has built up a network of "business" entities and non-profits, from the pseudo-newspaper-y "MNPost" to the not-very-covert propagandists at the "Center for Independent Media" (parent of the Minnesoros "Indepdendent"), at exquisite cost; one might now presume that this money was spent to get ahead of the legislative curve that the Feinstein/Durbin proposal represents, as a further attempt to shut down independent, non-government-vetted thought in this country.
This is Obama's America.
How many unjustified arguments do we have in those few paragraphs? Let us count them. First, blaming this on the Democrats in general. There are multiple sponsors of the bill - three times as many as those trying to amend it - who are Democrats. In fact, there are more Democratic co-sponsors of this bill on the committee who oppose the amendment than just Feinstein and Durbin.
Second, he attacks the Center for Independent Media over it. I happen to work for CIM, of course, and I am totally against this amendment. I'd be willing to bet that so is every other CIM employee and the leadership as well. Virtually everyone at CIM was once a blogger, too. We're on the right side of this one. So is Markos Moulitsas, the king of liberal bloggers. Clearly this is not a liberal vs conservative issue.
Lastly, he claims that this is "Obama's America" without having any idea whether Obama supports the amendment or not. Nor does he have any idea whether the amendment will actually pass. It doesn't look likely to pass in committee.
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Not to mention the absurdity of calling the limiting of a new federal protection "criminalising dissent".
All that said, I really don't understand why so many legislators want to restrict it to professional journalists. Is the media lobbying on this, or do they just want to be able to go after bloggers digging into their private lives?
Posted by: Ginger Yellow | December 8, 2009 9:44 AM
Yes, dinosaur media is heavily lobbying this.
Posted by: Coturnix | December 8, 2009 9:48 AM
I agree, it's a stupid law simply because Bloggers can be defined as independent contractors of a "News Agency" (i.e. the blogging site).
Posted by: Chilidog | December 8, 2009 9:59 AM
Posted by: James Hanley | December 8, 2009 10:05 AM
Ah, yes. They're excluding Thomas Paine. All he published
were occasional pamphlets, not real periodicals.
Posted by: Ahcuah | December 8, 2009 10:09 AM
Would it not make more sense to replace "protected person" with something like "person who obtained the information for the purpose of informing the public"? That should give the necessary broad protections to anyone whether professional, amateur blogger or even the whistle blower who has no plans to publish anything else.
Posted by: Matty | December 8, 2009 10:11 AM
Matty-
If the goal was to actually protect such things, yes.
Posted by: Ed Brayton | December 8, 2009 10:24 AM
I don't think phrases like "This is Obama's America" mean anything. It seems much more like a non-cognitive utterance, as in "Boo Obama/liberals!"
Posted by: Alex | December 8, 2009 11:02 AM
Um, this bill, without some definition of who 'counts' as a journalist, would give anyone who bothered to set up a web page the same rights to avoid testifying in court as journalists protecting their sources. That seems like a terrible idea. Your friend robs a bank? Make a blog entry covering the crime, and you're protected from having to testify.
The whole point of shield laws for journalists is to make certain that they can do their jobs: that sources will speak to them, that they'll be able to have access to private information, etc, without the worry that an anonymous source will be 'outed' via court order and so on. I think a test that asks 'Is this your job? Are you being paid for doing this?' is a good compromise - it protects all the major bloggers and actual journalists, while not extending this privilege to the point where it interferes with the administration of justice.
Posted by: mad the swine | December 8, 2009 11:35 AM
You have to put a line down somewhere in a form that passes court muster, especially in regards to not being unconstitutionally vague.
If you want to include freelance bloggers, when does a blogger become protected? I used to blog quite a bit on a group blog until our head blogger moved to TMV; haven't blogged a word since. Can I still claim protection? Is your special friend Pat a shielded journalist?
The right to gather information unmolested by the government is too precious to invalidate it by dilution; if thousands of bloggers can claim protection, how long until every judge will routinely find "compelling interest".
Posted by: Mu | December 8, 2009 12:03 PM
Just to play Devil's Advocate, couldn't this type of thing be used as a shield against legitimate criminal investigations? Suppose you are aware of a crime committed by your superior at work: You put up a few blog posts indicating your belief in her innocence. Should you be shielded from testifying by this?
If Faux News intentionally failed to report information that its employees knew with regard to Bush Administration secret and illegal programs, do they get a pass?
Posted by: kehrsam | December 8, 2009 12:07 PM
Posted by: Scott Hanley | December 8, 2009 12:25 PM
I am not a big fan of journalist shield laws, because it gives a certain class of person special protections that other citizens do not have. But I don't think this provision would pass constitutional muster because it allows the government to decide who is and who is not a journalist, and therefore, who is protected by law or the US Constitution. Unfortunately, I think shield laws have the potential to limit press freedom by giving the government the power to define "the press."
Posted by: Mark P | December 8, 2009 12:42 PM
@Mu--I too have lots of questions about this. I certainly don't see any logical basis for limiting the protections to people that are getting paid.
I'd find it helpful to understand the interests that are affected in the absence of this law. In other words, what would happen if this law didn't exist.
It seems that if the person/journalist acquires the information for the purpose of informing the public, then all matter of illegal activity would be protected. But if the same person/journalist acquired the information for personal knowledge, then he gets no protection.
Posted by: David C. Brayton | December 8, 2009 12:44 PM
"If you want to include freelance bloggers, when does a blogger become protected? I used to blog quite a bit on a group blog until our head blogger moved to TMV; haven't blogged a word since. Can I still claim protection? Is your special friend Pat a shielded journalist?"
The answer always given to this by those who would have teh law cover bloggers is that journalists shouldn't be shielded - journalism should. That's the whole point of Ed's argument. Journalism isn't about being a credentialed journalist, it's about digging for and reporting stories.
Posted by: Ginger Yellow | December 8, 2009 12:51 PM
@Mark P #13
I see you point. But the First Amendment already makes the press special, and for good reason. I think Lovell v. City of Griffin did a pretty good job when it defined the press as, "every sort of publication which affords a vehicle of information and opinion." The efforts to narrow that definition are an ill conceived, and I would say unconstitutional, infringement of First Amendment protections.
Posted by: Abby Normal | December 8, 2009 1:23 PM
So, by that definition, between "La Voz de MS13 ", "Bloods Today" and the "Mafia News Letter" we create a whole new class of protected enterprises, digging for stories about murder, drugs and business opportunities in personal protection...
Posted by: Mu | December 8, 2009 3:41 PM
Shield laws are of dubious constitutionality, but not because they might protect bank robbers. They typically protect journalists against subpoenas or court orders, not criminal prosecutions; they typically focus on information that is shared between two people and that might be exculpatory or valuable to a prosecution.
If you interview a person who is a bank robber, and understand from him things that might be materially useful to the prosecution, the prosecution might seek a court order to get the information from you despite an assumption of privilege between source and reporter. That's where the shield order might start to apply. Because prosecutors have high burdens of proof (in theory), they are somewhat less likely to venture into such speculative and risky evidence lines as reporter/source conversations and notes.
It's the defense side that the journalists want protection from. Because of the nature of defense vs. prosecution, defenses seek a lot of fishing expedition (though occasionally valid) shotgun-approach discovery subpoenas.
A common scenario is this:
A police officer shares information with a reporter during an investigation, perhaps in an attempt to use press coverage to identify suspects. If the investigation is pointing at an individual and the press report describes that individual then the defendants seek the right to discovery of the conversations. The tactic is effective because it triggers the journalist's instinct to protect the source; the defense gains either way because getting the information often leads to a plausible defense claim ("The police investigation focused on my client only and didn't pursue other leads") or casts doubt that something exculpatory was withheld if the notes aren't revealed (and can even create mistrial grounds and leverage plea bargains.)
I'm a journalist-teacher, but I can see the other side clearly. In two recent notable cases that journalist subpoena defense tactic worked to prove innocence in a railroading situation: Jewell, the accused Olympic bomber, and the anthrax suspect before Hatfill. Both were outed in the press; both demanded details of the sourcing of those stories; in both cases that process led to the examination of shaky investigative tactics and eventually to something like exoneration.
I'm not sure on this but I believe a test is included in the question of the information being shielded--I think it has to be materially valuable and also true. I'd like to know that, because I think it changes some things about the inclusion of bloggers.
I have no doubt that this is one more skirmish in the big media vs. online independents war (though I share your hilarity at the conservatives' entirely predictable attempt to claim it as one more, you know, whatever.) From my perspective it's ironic that high school journalist shield laws are commonly supported aggressively by the same outfits that resist blogger laws; the big media outlets sponsor high school journalism because they think it contributes to their efforts to save themselves. Makes me wonder whether a high school journalist--online or not--would be covered by the pending law.
If all it takes is employment to qualify, my students will be overjoyed to learn that they are all going on the payroll tomorrow. Until they learn that their salary if $5 a semester.
Ice9
Posted by: Ice9 | December 8, 2009 3:44 PM
I just wrote a paper on this topic for my undergraduate law class. There's more to the downside than has been expose. Remember in re Miller: basically, shielding journalists would allow politicians to use the press as a vehicle to anonymously leak stuff to smear the enemies, allow prosecutors to taint jury pools by lekaing evidence and so on. Any decent shield law would have to be narrowly tailored to avoid this.
Posted by: Ace of Sevens | December 8, 2009 6:55 PM
Ice9 actually covered what I said better. Also keep in mind there's a distinction between interviewing someone about a crime, witnessing a crime and assisting in commission of a crime (like the dirty prosecution tactics or Cheney). I see no problem with protecting the first. The other are problematic.
Posted by: Ace of Sevens | December 8, 2009 7:14 PM
Ace of Sevens--can you point me to some good references? My guess is that there are several law review articles and maybe even books that delve into this topic.
Posted by: David C. Brayton | December 8, 2009 9:34 PM
In somewhat related news, Rupert Murdoch wrote an editorial for today's WSJ in which he said that the role of media is to stand up against the rich and powerful.
No foolin' he really said that.
Posted by: Chris Bell | December 8, 2009 10:57 PM
Abby Normal, I would argue that the rights protected in the first amendment are the rights of individuals, not of some abstraction called "the press." Publication as an action by an individual is what is protected, just as are the practices of religion, and of speech, assembly, and petition. I think it is perfectly OK for Congress to pass laws which try to apply or even extend those rights, but I think they should be universal, not restricted to a particular group defined by Congress.
Posted by: Mark P | December 8, 2009 11:31 PM
I was using all primary literature, but covered the cases Branzburg v. Hayes 408 U.S. 665 (1972), Von Bulow v. Von Bulow 811 F.2d 136 (2nd Cir. 1987), In re Special Procedings 373 F.3d 37, and of course in re Miller. Basically, there are some cases where the decision said reporter's privilege doesn't apply, implying it exists, but precious few where people actually win cases on this claim.
Posted by: Ace of Sevens | December 9, 2009 2:18 AM