A shield law covering bloggers? Consider the trade-off first

Do you want the Supreme Court of the United States telling us, at least in this country, who is or is not a journalist? And do you want SCOTUS telling us what information ought to be protected?

Your answers will probably reflect your attitude toward the Free Flow Information Act of 2007. It’s been introduced in the Senate as S. 1267 (see text) and the House as H.R. 2102 (see text). The definitions and language of the bill are sufficiently vague as to virtually invite the Supreme Court to legislate. The bill may also represent both protection — and a warning — to bloggers.

Would the bill make bloggers happy? Depends. The proposed bill alters a fundamental tenet of traditional shield law legislation. Until now, “journalist” has been defined as membership of a professional journalistic organization. This bill would change that by defining journalism as an act, not membership. In other words, we’d go from noun to verb. From the bill:

The term `journalism’ means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

Let’s be clear about what shield laws are designed to do. First, a source disenchanted with government approaches you, the reporter, and says something’s rotten in government. The source tells you what it is — but only after you swear to never divulge his or her name without permission.

You do the story. The public finds the government’s rottenness outrageous. Government attorneys and special prosecutors investigate. But they want you to tell them the name of the source. You refuse. They send you to jail until you comply with their order to do so.

That’s what shield laws should do: Protect a journalist from revealing confidential sources. The argument for a shield law: Without confidentiality, much government incompetence and malfeasance would never be revealed. That’s also why federal and state whistleblower laws have been enacted: to protect government employees who reveal such sins from maltreatment or retaliation. A journalist’s ability to keep the identity of a source who squeals on the feds secret is part of the nation’s system of checks and balances.

Apparently this bill would afford bloggers shield law protection. But do they need it? In blogging’s early history, with some notable exceptions, blogs didn’t break news. They digested, analyzed, nitpicked, whined, etc., about news broken by traditional news organizations staffed by trained, presumably credentialed journalists.

But that’s changing. Bloggers, as they gain credibility, will eventually be approached by whistleblowers wanting to trade anonymity for the dirty laundry of government (or corporations; read on). On that score, this bill appears to be good for the blogging community.

There’s more: A good shield law should obligate the government to utilize every and all possible resources before demanding that reporters give up their sources. This bill’s language suggests that: “exhausted all reasonable alternative sources …” You, the reader, get to decide whether that’s adequate. It appears to pass muster.

A good shield law should also indicate what information is worthy of being “shielded” as well as the identify of the source. Section 2 of this bill deals with what can be “compelled disclosure”: criminal investigations or prosecutions, threats to national security, disclosure of valuable trade secrets.

Aha! That’s new. Think Apple’s lawsuits against bloggers for revealing “trade secrets.” When did revealing a “release date” constitute a trade secret? Again, if this passes Congress as worded, I expect it will eventually end up in the Supreme Court with some “test case.”

Is the stick being handed out with the carrot? Are bloggers being told this: “You can stay out of jail while protecting sources … as long as you don’t divulge what corporations are doing that’s harmful to consumers and investors.” Keep in mind, of course, that President Bush has tilted the Court to the right … waaay right.

An interesting conundrum for bloggers. Let’s keep a close eye on this.

xpost: 5th Estate

4 replies »

  1. Ummm, now wait a damned minute. Thank you for noting the Apple case – where, as you say, it was asserted a feckin’ RELEASE DATE was a trade secret.

    I hate to be cynical, but am I wrong to wonder if this bill is a Trojan horse that serves bloggers maybe a little bit and corporations a whole hell of a lot? Why would a bill like this insinuate trade secrets into the corpus?

    I need to digest some more, but let me walk through here and selectively poke at some things.

    In 2(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is essential to the successful completion of the matter;

    What kind of case are we talking about here – it’s not a criminal investigation or prosecution, so what is it?

    In 3(C) we seem to have equated the sanctity of release dates with matters the need “to prevent imminent and actual harm to national security…” Really?

    I can’t wait for the Roberts Court to get its hands on this one: “(4) that nondisclosure of the information 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.”

    I don’t know. Do we see trade secrets as national security issues? Maybe – to be sure, most of our economic competitors around the world have government extensive support of corporate activity (support that includes state-supported corp espionage).


  2. Sam wrote: “I hate to be cynical, but am I wrong to wonder if this bill is a Trojan horse that serves bloggers maybe a little bit and corporations a whole hell of a lot?”

    I don’t think you’re being cynical, I think you’re being realistic. This smells like it’s about “managing” the “free flow of information” rather than “protecting” it. And if the language is sufficiently vague, what’s to prevent the government from labeling its doings “trade secrets”?

    If one thinks about the machinations of the White House protecting Cheney’s “energy task force,” it doesn’t seem to be a stretch to think that any kind of hand-in-glove deals with lobbies and their corporate masters might get re-denominated as issues of “national security.”

  3. This is both about the right to be a journalist, and to be responsible for being a journalist. Some test cases would be good. We’ve debated this before; bloggers are taking on the mantle of being journalists and should expect to be treated like them.

  4. Oh, on “release dates”. In Europe, I think it was Denmark, a small private company decided they were going to start a free newspaper. Somehow the information about their launch date got into the public domain long in advance.

    A few days before they launched a whole bunch of copy-cats got in first and stole their thunder.

    This happens quite a bit in corporate strategy. So – as a business strategist – I’d argue that, depending on the situation, release dates can be considered trade secrets.