Shield Laws and Who is a Journalist

First an old list of jailed journalists

Second, today's anti-leaking memo.

From 2013:

One of the troublesome aspects of the bill is an amendment proposed by Sen. Dianne Feinstein, D-Calif., and co-sponsored by Sen. Richard Durbin, D-Ill., which “defines a journalist as a salaried agent of a media entity,” such as a newspaper, broadcast news station, news website or another type of news service distributed digitally. There is also a “look back” option to protect legitimate reporters not tied to a specific news organization. Feinstein said, “This bill is described as a reporter shield law — I believe it should be applied to real reporters.” She was also concerned “that the current version of the bill would grant a special privilege to people who aren’t really reporters at all, who have no professional qualifications.”

Sen. Charles Schumer, D-N.Y., co-sponsor of the bill, objected to Feinstein’s definition, stating that bloggers and others don’t necessarily receive salaries:

“The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that. But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.”

A more recent article in the Columbia Journalism Review:

The first question: Who’s a journalist? That might be a tired debate in some circles, but when it comes to journalist’s privilege, it’s a question that has to be answered. Some privilege schemes are narrow and apply only to full-time employees of professional news outlets, while others are broad and extend to bloggers, filmmakers, freelancers, book authors, and student journalists. In other words, some are inclusive and others are exclusive. The problem here, of course, is that innovations in technology have complicated the endeavor of defining journalists and journalism.

From Digital Media Law Project:

Who is Covered?
California's shield law protects a person "connected with or employed upon a newspaper, magazine, or other periodical publication." In an important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate court held that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online. In that case, Jason O'Grady operated an "online news magazine" about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O'Grady did not have to identify his source.

The O'Grady case does not mean that all online publishers will benefit from the protection of the California shield law. The court indicated that the shield law protects newsgatherers, like O'Grady, who engage in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." On the other hand, the court said the shield law might not protect "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group." The court expressly declined to decide whether the shield law applies to bloggers because of the "rapidly evolving and currently amorphous meaning" of the word "blog." Thus, the exact reach of the California shield law is unclear, but it arguably protects online publishers who gather and disseminate news to the public. The exact definition of "news" is uncertain, and future cases will no doubt determine its contours more precisely.