Non-'casual' bloggers win legal shield in House

Bill would shield those who derive "significant financial gain" from newsgathering from revealing confidential sources in federal cases. Bush administration doesn't like it.

Update 3:10 p.m. PDT: Despite veto threats from the Bush administration, the House of Representatives on Tuesday approved a bill that would shield journalists--and some bloggers--from being forced to reveal confidential sources in federal cases.

By a 398-21 vote, the politicians backed an amended version of the Free Flow of Information Act. Sponsored by Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.), the proposal offers a "qualified" privilege to anyone engaged in journalism, which it defines as "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."

But beware, "casual" bloggers: The privilege isn't meant to apply to you, the bill's sponsors say.

So how do they define "casual"? The politicians unanimously agreed to adopt an amendment (click for PDF) that specifies the person engaged in journalism must do so "regularly" and derive "a substantial portion of the person's livelihood" or "substantial financial gain" from the practice. (It would presumably be up to a court to sort out what exactly constitutes "substantial" and "regularly.")

And in case there was any doubt, the amendment specifies that terrorists or members of terrorist organizations, as designated by federal law, don't qualify for any privileges afforded by the bill either.

And even for those who qualify, the privilege is not without numerous exceptions, as CNET Blog Network contributor Josh Wolf detailed earlier Tuesday. Many of the carveouts deal with issues related to national security or serious criminal investigations, while others seek to protect unauthorized disclosure of trade secrets or other sensitive personal information.

Before the vote, members from both parties spoke in favor of the bill, which is endorsed by a number of major media organizations.

"Freedom of the press protected by the First Amendment has been a cornerstone of our democracy, one that we cherish and promote around the world," House Speaker Nancy Pelosi said in a brief speech before the vote. "The essential work of the press has been severely hampered by a lack of federal standard."

A handful of prominent republicans, including House Judiciary Committee ranking member Lamar Smith (R-Texas) and House Homeland Security Committee ranking member Pete King (R-N.Y.), repeatedly attacked the proposal, pointing to strong reservations voiced by the Bush administration.

The White House, Justice Department and intelligence community strongly oppose the bill because they argue it's broad enough to undermine their crime-fighting and antiterrorism efforts. The president's advisers have recommended he veto it, should it pass, Smith said.

"If the media shield bill passes, we'll be carving out a special exception to that rule for reporters, tabloids and bloggers," said Smith, who professed to having "sympathy" for the press after a two-year stint as a newspaper reporter when he was younger. "This is not what our founders intended when they created a free press. No one should be above the law, not even the press."

The idea of a reporter's privilege is hardly new, and 49 states and the District of Columbia currently have some form of reporter's privilege on their books. But King questioned why a federal rule is necessary, citing the Department of Justice's statement that it has only issued 19 subpoenas to reporters since 1991.

"Some of the people who hide behind the shield of journalism today routinely release classified national security info as if it were their duty," he said before the vote, later adding: "People should not be protected...just because they gave the information to a reporter or blogger, not someone else."

Rep. John Conyers (D-Mich.), who supports the bill, said the balance struck by the bill is appropriate. "If the exceptions were any broader," he said, "it would swallow up the rule itself."

On the Senate side, the Judiciary Committee has approved a similar--but not identical --version. All veto threats aside, for the bill to become law, the full Senate would have to approve a bill and reconcile any differences with the House.

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