Copyright Law

Texas Moves Closer to Shielding Journalists, Bloggers' Protection Unclear

By Michael Lindenberger

Bloggers in the Lone Star State are being left out of a law that would give journalists limited protection against subpoenas. The Texas House has passed overwhelmingly a bill that would let Texas join some 36 other states in erecting a shield for journalists who want to keep confidential information secret, even in the face of a subpoena. The bill (read the committee analysis here) awaits a vote in the state Senate, which voted last session to approve a similar bill, only to see that bill die on a technicality in the House, according to Emily Ramshaw of The Dallas Morning News.

Texas' efforts are the latest in a decades-long series of state actions attempting to sort out the mess left by Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court case that sided against a journalist from The Courier-Journal, but nevertheless has been cited for more than 35 years as the source for (at least some) constitutional protection for journalists. (You can read about some of the federal fallout in previous CMLP posts here, here, here, and here.)

The problem in 1972 for some of the Justices was how to define a who is a journalist, and thus entitled to the protections the media was asking for.  From the Supreme Court's Branzburg opinion:

We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. . . . Freedom of the press is a 'fundamental personal right' which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' . . . The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury. [Citations omitted.]

It's still a problem more than 35 years later. The Texas bill defines a journalist narrowly, and in a way that would seem to leave independent bloggers or -- in a category near to my heart, given my hard-scrabble beginnings in journalism -- poorly paid freelancers.

Here's the key language from the Texas bill about who gets protection:

"Journalist" means a person, including a parent, subsidiary, division, or affiliate of a person, that for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects,   photographs, records, writes, edits, reports, investigates,   processes, or publishes news or information that is disseminated by a news medium or communication service provider . . . . 

What's not clear to me is who is behind the narrow definition -- a version in the U.S. Senate strikes the language about substantial financial gain, for instance. But I have a hunch: it's journalists themselves who are loath to admit everyone to their party. It's not an unreasonable position, given that so many mainstream journalist look at sloppy and unedited, unprofessional work by bloggers and fail to see any family resemblence at all. 

What they miss, however, is that bloggers are evolving, and in some (to my mind, fairly rare) cases are already doing work that many print or broadcast journalists would love to call their own. As for the rest -- those at-home, pajama-wearing, quick-fingered loafers? -- they're part of a tribe of writers and, sometimes, reporters whose contributions will only improve in time. 

Besides, with major media outlets hosting dozens of blogs, these distinctions are blurring more quickly than ad sales at major newspapers (and believe me, that's fast.)

But the real problem with failing to see that all of us are descended from the same forebearers is how that short-sightedness helps retard the progress by bloggers, essentially helping make true or at least extenuate the failings print and broadcast journalists often see in their blogging counterparts. Laws like the one moving ahead in Texas have taken years to materialize, and won't easily be amended. Meanwhile, the bloggers who want to contribute in important ways to the public discourse will do so without the kind of legal protections that we mainstreamers rely on to do our jobs well.

The law in Texas, should it pass the Senate, is good news for journalism. But it's also just the latest example of how the profession is failing to adapt to a fast-changing landscape, and doing so at its peril.

For the past 50 to 100 years, courts and lawmakers alike have erected strong protections for news media, from libel to access to open records, the broad arc of our legal history has been in our favor. But will those protections, and the responsibilities they point to, be extended for another 50 years?

Only if the courts and lawmakers, and the journalists themselves, are wise enough to build a legal framework that can adapt to a changing world. Charles Darwin had a word for what happened to species that failed to adapt: He called it extinction.

Full post as published by Citizen Media Law Project on April 03, 2009 (boomark / email).