New-media debate: Who qualify as journalists deserving legal protection?
BOSTON — Advocates of a long-debated proposal to protect reporters from legal action for not revealing their sources are facing a complex question: Who is a journalist?
State Rep. Dan Winslow, R-Norfolk, sparked the debate at a Joint Committee on the Judiciary hearing on Tuesday, when he asked a panel testifying in favor of a shield law for journalists about language in the bill defining news media as “any entity that is in the regular business of news gathering.”
“The dividing line between who is and who is not in the business of news is often open to debate,” Winslow said in a later interview. “I just don’t like parsing First Amendment issues.”
Massachusetts is one of 10 states without a shield law. Bay State journalists who refuse to reveal their anonymous sources when subpoenaed face fines or even jail time.
The proposal under consideration would prevent the state from forcing journalists to disclose their sources or turn over notes and other materials unless that information cannot be obtained anywhere else.
Legally defining what a journalist does, however, is tricky. The media landscape once dominated by newspapers and television news has been transformed by the Internet. Now, citizen journalists, bloggers and even Twitter users crowd the playing field.
When bill sponsor Rep. Alice Peisch, D-Wellesley, first proposed a shield law seven years ago, the definition of who would be considered a journalist included anyone who was gathering and sharing news with the public.
“I received a lot of pushback on the issue. People asked, ‘So anyone who wakes up one morning and decides they want to blog can say anything about anyone and be protected?’” Peisch said. “There was an effort made to narrow that definition to cover people who really were legitimately in the business of news reporting.”
Peisch said she is open to compromise on the definition if it becomes an issue, but she does not expect the bill to pass this session due to low interest among lawmakers.
Journalism industry leaders have different takes on the bill’s language that defines those covered as “engaged in bona fide news gathering,” and who deserves to be protected by the legislation.
Bill Pepin, chairman of the Massachusetts Broadcasters Association, testified Tuesday in support of the bill. In a later interview he said he shares Peisch’s view that allowing anyone who calls himself a journalist to claim protection under a shield law could be dangerous.
“I think you might have people, hypothetically speaking, of a criminal nature who could decide to exploit the shield law bill for their own purposes,” he said. “I think if you’re not employed and you’re not being published by a legitimate news source, then you’re a wannabe journalist.”
Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association who also testified, said he understands lawmakers may be concerned that someone with an ax to grind could take advantage of the law. But he thinks this is one part of the legislation that could be improved.
“If you’re engaged in a journalism function, then you should be covered,” he said.
The bill’s intention is to define those covered under the law as being in “the business of gathering news” as someone deriving an income from reporting, according to Jeffrey A. Newman, an attorney who helped write the proposal. But Newman said it would be up to a judge to interpret the definition.
“We wanted this to be a statue that had legitimacy and didn’t cover everyone because it would be meaningless,” said Newman, who has represented New England media organizations in court cases including confidential-source issues for more than 20 years.
Ambrogi agreed that it appeared the media organization under scrutiny must at least be looking to make money.
“We are leaving some questions open as to who is a journalist,” he said. “It’s a gray area, but it’s a narrow gray area.”
Gerry Nutter of Lowell seems to fall in that gray area. He doesn’t make any money from gerrynutterslowell.com, his advertisement-free website where he opines on politics and sometimes does his own reporting on local news stories.
He said he’s never been threatened with a lawsuit in two years of running the site, which he said gets about 1,100 views per day. But he does promise sources anonymity in exchange for information.
“I do kind of dig for the facts and, yeah, I wish it would protect me,” Nutter said.
Nutter has never considered himself a professional journalist. For him, blogging is just a part-time hobby. He doubts he would qualify as being “in the business of newsgathering,” but said he thinks the bill should also apply to him.
“As long as you are trying to find the facts and the truth and you’re publishing that, then you should be able to be protected,” he said.
Shield laws have failed to protect bloggers in other states, according to Jeffrey Hermes, director of the Citizen Media Law Project at Harvard University’s Berkman Center for Internet & Society.
In Illinois, the technology news site TechnoBuffalo was sued last year by a printing company for posting a picture of a new cellphone submitted by an “anonymous tipster” before it went on sale.
The judge ordered TechnoBuffalo to reveal the source of the photos, refusing to grant the blog reporter’s privilege because the site wasn’t covered under the law’s definition of a “news medium.”
“While TechnoBuffalo’s website may have over a million viewers, it fails to show it qualifies as a ‘news medium’ under the Illinois Act,” Circuit Court Judge Michael Panter wrote. “TechnoBuffalo’s anonymous ‘tipster’ is hardly an example of a ‘source’ of investigative journalism that requires the protection of the Act.”
Hermes said the proposed bill in Massachusetts may fall short of protecting those like Nutter and TechnoBuffalo.
“The language here doesn’t seem to have been designed to reach individual bloggers,” he said.
According to the Berkman Center, the only form of protection that exists for Bay State journalists now is common law. Without a shield law, state courts must balance the interests of the party keeping the source anonymous and the party seeking disclosure on a case-by-case basis.
Winslow hopes the bill can be improved to give judges a clear idea of when a shield law can be invoked and who is covered by it.
“I just want some guidance,” he said. “It’s a brave new world of digital media and if we’re going to be extending constitutional protections, I just want to have some sense of where the edges are.”