Blogging Business or ‘Media Entity’ Covered by Shield Bill—Lugar Aide
Bloggers that “act more like businesses” or media entities will have “some sort of coverage” under Sen. Lugar’s (R-Ind.) media shield bill, a Lugar spokeswoman told us Wed. Lugar told the Inter American Press Assn. this week his Free Flow of Information Act (S-1419) would “probably not” apply to bloggers, Editor & Publisher reported.
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The clarification of Lugar’s position adds confusion to earlier statements from sponsors of the House companion bill (HR-3323). Reps. Pence (R-Ind.) and Boucher (D-Va.) have said separately their bill wouldn’t apply to bloggers, because such a provision would “potentially open it up to everyone” (WID July 21 p3). Lugar’s spokeswoman said she wasn’t sure “if this is a difference of interpretation” or just a semantic difference, but there “seems to be a gray area here.”
The key difference for bloggers covered by S-1419 is the regularity of their writing activity and feasibility of their blogs as businesses, Lugar’s spokeswoman said. The term “electronic” in the bills is loose enough to include online material, but the “periodical” requirement distinguishes between “something that is updated continuously” and “more random, nonsystematic” entries, she said. The latter is considered more typical of bloggers, “in the pejorative sense.” The Newspaper Assn. of America also said the distinction turns on whether a blog is considered a “periodical.” Blogs that include ad space could also be considered media entities, the spokeswoman said, but she declined to name specific blogs that would be covered, such as Gawker Media’s stable of blogs or D.C. journalist Josh Marshall’s TalkingPointsMemo.com, which provides his whole livelihood.
There’s a problem with extending blanket coverage because it would allow any person to avail themselves of the privilege “simply by starting a blog, which is very easy to do,” Boucher told us Thurs. Under such a sweeping exemption, “there’s absolutely no limit as to who could claim this privilege,” he said. Blogs that are the electronic equivalent of print publications and are operated for a business purpose could be entitled to the privilege, Boucher said. If a blog is simply a “running log of commentary published without sales or subscription [fees] and it’s just placed on the Web, I think that’s a problem and should not qualify.” The vast majority of professionally written blogs don’t have subscription fees.
Boucher admitted the difficulty of differentiating journalists from others. “There’s really no good way to draw a line between the two,” he said: “This is an evolving subject matter and it’s something we have to give careful consideration to. We have to be creative about finding a way to designate people who really are journalists within the traditional concept -- and that should include electronic journalists.” Boucher said he’s “not endorsing any of it,” only putting some ideas on the table. “I'm not even saying at the end of the day we ought to extend it to bloggers, I'm just saying we should look at it,” he said. Boucher said he hopes his bill will prompt a hearing and a markup this year.
Govt. Licensed Guild?
Shield laws in general are a bad idea, said U. of Tenn. law prof. Glenn Reynolds, who runs the popular blog Instapundit.com. “Journalists should have no more freedom to resist a court order than anyone else,” he told us. Focusing on whether someone is a journalist rather than whether they are doing is journalism creates what amounts to “a government licensed guild.” “If privacy follows the publisher, [and] if it’s based on where your paycheck comes from, that’s practically a title of nobility,” he said. Reynolds thinks none of the measures being proposed on Capitol Hill are “ready for prime time… They really have no idea what they're doing here, and it’s astounding to me that your right to free speech depends on whether you're making money or not.”
BuzzMachine.com blogger Jeff Jarvis said the bills would go beyond putting bloggers at risk: “They would exclude citizens who commit acts of journalism.” Jarvis, also a consultant for the N.Y. Times’ About.com, raised another specter: “They will certify ‘professional journalists’ by one definition or another and then have the power to decertify them.”
The latest wrinkle in Lugar’s bill makes it seem he’s “siding with the fat cats over the little guy,” Reynolds said. Regardless of whether the privilege is about being a reporter, he thinks the shield law is a bad idea. But if the privilege is based on employment at a media company, “it’s basically a privilege for big business.” He likened the situation to an environmental measure that provides oil companies don’t have to follow laws protecting wetlands but a person fixing his car in the backyard does: “They're saying if you're a big business in the media field, then you don’t have to follow the laws the rest of us do.”