by Matthew L. Schafer
It’s happening everywhere. From California to New Jersey to Iceland, bloggers and free speech advocates in case after case are arguing for protections under shield laws. While Iceland recently became a haven for all types of journalism, the scope of protections for bloggers and even journalists in the United States is a constant topic of debate.
The breadth of shield laws, which were established to protect journalists from being required to turn over their sources or other information gathered as the result of the newsgathering process, has become an increasingly controversial topic with courts often handing down competing opinions.
On Friday, a California prosecutor struck a deal with Jason Chen of Gizmodo, the blogger who bought an iPhone 4 off a bystander who found it orphaned at a California bar. As a result of the compromise, which allows Chen to voluntarily turn over documents relating to the iPhone fiasco as opposed to having his laptop among others possessions searched, largely makes the shield law debate null at least in this case. Chen’s lawyers did, however, suggest that Chen was protected under California Penal Code Section 1524, which says:
“A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt… for refusing to disclose… the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”
Because the laws vary from state to state and no federal shield law exists, a deceivingly simple question remains unanswered: Is a blogger a journalist? The answer, of course, depends on who you ask. In California, for example, two related cases in 2004 and 2006 involved Apple and a blogger who published Apple secrets. Apple was seeking the blogger’s sources and contended that the blogger who released information about the upcoming Garageband program was not involved in “legitimate journalism.” Therefore, he was not protected by shield laws. The judges, however, argued that the blogger did have protection under the California shield law.
“Beyond casting aspersions on the legitimacy of petitioners’ enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law’s protection,” Judge P.J. Rushing wrote in the court’s opinion. “Certainly it makes no attempt to ground an argument in the language of the law, which, we reiterate, extends to every ‘publisher, editor, reporter, or other person connected with ‘news gathering.'”
Yet, the Apple cases in California hardly help to demystify the law elsewhere. For example, in a April 2010 ruling in New Jersey, a court argued that a blogger was not protected by the shield laws. The case involved a blogger who was accused of defamation and “tortious interference” (among others). The blogger sought protection under the New Jersey shield law so she would not have to reveal her sources. The court, however, ordered her to reveal her sources, because the shield law, which is strikingly similar to the California law, was not intended to cover bloggers.
“Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer . . . .”
“Simply put, new media should not be confused with news media,” Judge Anthony Parillo wrote. “There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting.”
The involvement of the Supreme Court is inevitable. At some point, direction will have to be handed down to the lower courts on this increasingly contentious issue. The Supreme Court, with a prophetic voice, even said as much in 1972.
“Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer… just as much as of the large metropolitan publisher,” Supreme Court Justice White wrote.
A federal shield law called the “Free Flow of Information Act” is currently stalled in the Senate. Among other things the law would prevent “a Federal entity [from compelling] a covered person to provide testimony, or produce any document, relating tocomply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information.”