So who should you call a journalist?

CNET News.com's Declan McCullagh says a proposed federal shield law could harm folks who use the Internet to do journalism.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
A renewed effort in the U.S. Congress to create a federal shield law for news organizations is raising a sticky question: Who is a journalist?

A generation ago, the answer usually was clear. Not anymore. Online scribes and video publishers are experimenting with novel forms of journalism, and even the most stodgy news organizations are embracing blogs.

That leaves politicians--hardly the most clued in about all things tech--in something of a quandary. They're being lobbied by professional news organizations and the American Bar Association to approve some kind of journalist's shield law while being urged by prosecutors to leave out bloggers.

The justification for a shield law is a perfectly reasonable one. After a federal appeals court enforced grand jury subpoenas against The New York Times and Time magazine, and the U.S. Supreme Court declined to take the case, news organizations decided to fix the law.

The Justice Department took a swipe at the leading shield proposal (H.R.3323/S.1419) during a Senate hearing last week, arguing that it would let criminals pose as bloggers.

"As drafted, the definition invites criminals to cloak their activities under the guise" of a journalist, warned Chuck Rosenberg, a U.S. Attorney in Texas. "The definition arguably could include any person who sets up an Internet 'blog.'" (It covers anyone who publishes an electronic "periodical.")

Sen. John Cornyn, a Texas Republican, seemed to be sympathetic to that argument. "The relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," Cornyn said.

Even the original sponsor of the Senate shield proposal, Richard Lugar, R-Ind., recently indicated that bloggers will "probably not" be deemed journalists.

Second-class citizens
That line of thinking could pose a real threat to people who use the Internet to do journalism. Not only will it make it harder to do the kind of serious reporting that requires confidential sources, but it's deeply symbolic: Independent online reporters are second-class citizens.

I'm not too worried about myself and my colleagues. CNET News.com has press credentials through the U.S. Congress' Daily Press Gallery, we've won awards from the National Press Club and the Society of Professional Journalists, and we're likely to be covered under the final version of a federal shield law.

But if the Bush administration has its way, one-person operations doing original reporting won't have equivalent protection from overzealous (or simply mean-spirited) federal prosecutors. That would unreasonably elevate corporate-sponsored journalism over independent muckraking.

That should worry anyone who believes in vigorous public debate. After all, even for news organizations with the money to hire lawyers, ambitious federal prosecutors can be menacing and disruptive.

I know this firsthand: in March 2001, the U.S. Justice Department served me with a subpoena to testify before a federal court in Tacoma, Wash. Media attorney Timothy Alger filed a motion in opposition, but the judge ignored it. (Just as the Justice Department ignored its own procedures, which require negotiating with journalists before firing off subpoenas.)

During my testimony, I invoked my First Amendment privileges three times when refusing to answer questions. I got off lucky compared with Judith Miller and at least 10 other journalists who have been threatened with similar sanctions recently: The judge didn't press the issue, and I never faced contempt charges.

If a similar prosecution had taken place in state court, prosecutors wouldn't have been able to be as aggressive. That's because 49 states and the District of Columbia recognize some sort of journalist's privilege.

Federal courts don't, and it's time to change that with a federal shield law. But while politicians are finalizing the wording, they should include individuals who are producing some of the most interesting journalism on the Internet today.