Does creating/commenting on internet content give one the right to call upon a state's shield law for protection? In an ever-changing, multimedia based world this is certainly a legitimate question. Is there a divide between the blogger and the traditional journalist?
In the case of New Jersey, it was a matter of what constitutes a journalist. Mackey noted, "The decision recognized that online commenters who post on message boards are similar to individuals who write letters to the editor, a group of people who historically have not received protection fro the sheild law." The lawsuit concerned defamation. Shelbee Hale was accused of defaming Too Much Media with comments on an internet message board concerning the company's leaders. Hale tried to invoke the state's shield law, but the court did not recognize her as part of a publication, and thus, she did not qualify for protection.
"The law requires those seeking its protection to have some connection to a publication -- online or otherwise -- that is similar to traditional media," says Mackey.
In Hawaii, the issue wasn't much different. When police subpoenaed the MauiTime for subscriber information regarding those who'd commented on a post by the publication, Editor Tommy Russo sought to invoke the state's shield law. A commenter had threatened the life of a police officer depicted in a video posted by the editor, but the subpoena was withdrawn.
According to Mackey, the incident worried Jeffery Portnoy, a media lawyer in Hawaii. "The state had recently passed a two-year extension of the law, which includes protections for online journalists reporting on matters of public interest. The govenor signed the bill after some hesitation, Portnoy said." Ultimately, Portnoy's concern was with the extension of said law to internet commenters.
There is much room for concern. Who decides what constitutes as journalism or a journalist for that matter? Everyone is not qualified to act as a journalist, are they? What if every post we made on the internet could be considered "journalism?" And, when is it appropriate for a journalist to give up information about clients? A death threat seems more than admissible to the situation in Hawaii.
In the past, these questions were all left to the state, but that may change, for "not all shields are created equal." according to Josh Stearns and Chris Palmer of FreePress.net, "Some states limit coverage to "professional reporters," while others protect freelancers, book authors, electronic publishers and educators."
A federal shield law has been in the words since 2005 as The Act of Free Flowing Information. Here are the details of that act from FreePress.net:
The issue, however, is not resolved here. This act "limits the scope of who qualifies as a covered person." Should the federal government answer the prior questions? "Policymakers want to limit protections to those who make a significant amount of their income and livelihood from journalism, but the federal shield law should cover anyone who provides journalistic services, even if a person is not professionally or regularly employed as a journalist." says Stearns and Palmer.
According to Kurt Wimmer in an article on the Huffington Post, "Like any bill, the Act must define its terms. The attorney-client privilege only applies to "attorneys," a defined term. The doctor-patient privilege only applies to "doctors," a defined term. The journalists' privilege applies to "covered journalists" when they have received a demand for testimony -- an extremely expansive term defined in the Act as anyone working for a journalism outlet (explicitly including bloggers), freelancers with an intent to publish, and anyone a judge finds should be covered in the interests of justice."
As of 2016, the fight for federal shield law is still on. In 2014, an amendment was approved which forbade the Justice Department from "spending money to force a journalist to testify about a source," says Cora Currier of the Columbia Journalism Review.
“I think we’re really close, and the Risen situation really highlights the need for the law,” - David Cuillier, President of the Society of Professional Journalists
Sources:
Columbia Journalism Review
Reporters Committee
Free Press
Huffington Post
Society of Professional Journalists
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