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Hanging citizen journalists out to dry: shield-law amendment excludes unpaid bloggers

by: Pam Spaulding

Tue Sep 29, 2009 at 08:00:00 AM EDT


This may seem like a little inside baseball, but bear with me, because it will directly affect some of your favorite blogs.

Here at the Blend we have inboxes overflowing with emails asking us to cover this story or that event -- from advocacy organizations, tips from readers, PR firms, and the news media. It's pretty clear that the equality rights movement is highly dependent on blogs and citizen journalism to analyze, report and advocate in the unique way that we do.

Many of these LGBT-based blogs are done as a labor of love because there's certainly not enough money out there to quit our day jobs. Bloggers like myself, who subsidize the site with an unrelated day job are about to get a big F-You from Chuck Schumer if the roof isn't raised. Ad revenue is irrelevant here, btw; you have to be employed by an entity to be covered.

A recent amendment to the federal shield bill being considered in the Senate will exclude non-"salaried" journalists and bloggers from the proposed law's protections.

The law, called the Free Flow of Information Act, is intended to prevent journalists from being forced to divulge confidential sources, except in cases such as witnessing crimes or acts of terrorism.

Well, read the fine print to see how citizen journalists are left legally hanging out to dry. Schumer's amendment draws a distinct line between bloggers and "real journalists" that:

limits the definition of a journalist to one who "obtains the information sought while working as a salaried employee of, or independent contractor for, an entity-

a. that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and

b. that-
1. publishes a newspaper, book, magazine, or other periodical;
2. operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
3. operates a programming service; or
4. operates a news agency or wire service."

So there's no doubt that independent bloggers are the target here. At once we're considered irrelevant and so dangerous they have to legislatively set up a slippery slope that can land us in the clink or left penniless just for trying to participate in citizen journalism. Wow.  The real issue here, however, is less the shield law than placing a definition of what is a journalist on the books. That will alllow pols, news outlets, state governments, etc. to deny citizen journalists press access because they are not "journalists" as defined by federal law.

It's a huge slippery slope and a loss for independent reporting by bloggers if this definition clears.

Marcy Wheeler of Firedoglake confirms that we're screwed:

To to be a journalist in Chuck Schumer's eyes, you have to both have a boss (at this point, you generous readers and Jane would count as my boss, but Jane doesn't have a boss, for example) and that boss' company must disseminate news on some other medium, in addition to the Toobz. Even free-lance writers or people like IF Stone (in the period when he ran his own newsletter) would be excluded from this definition of journalist.

Now, I'm on the record as a skeptic that this new law is going to work out the way the media thinks. I fear that the national security exemption will mean the law will protect people like Judy Miller mobilizing smears or the Rent-a-Generals spreading propaganda, but not protect Dana Priest or James Risen and their sources.

Still, this move pisses me off because it's a transparent bid to grant a powerful industry special privileges.

This is about ensuring that there is a wall between real journalists and the perceived unwashed masses of ignorant, unqualified bloggers who are mucking up the system. This is a serious issue, because I believe that reliable citizen journalists do have the respect of traditional media in some circles, but this legislative bid to create a firm wall is declaring war on us.

Nieman Journalism Lab's Zachary M. Seward, who previously noted the House's different definition of journalist, also expressed concern. "The shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job," he wrote.

More below the fold.
Pam Spaulding :: Hanging citizen journalists out to dry: shield-law amendment excludes unpaid bloggers
 

It's ironic that this development surfaces right after I discussed the fairly accurate perception that blogging/advocacy journalism sits in a position that is ill-defined. (Huffington Post, "A Tech-Powered Gay Rights Movement"):

It's a headless monster in many ways -- digital activists in this world are frequently not Big Gay insiders. They are often part-time activists -- people who feel strongly about issues and use the Internet daily. They never intended to lead or even follow movement leaders; they are just handy with the Internet tools of the trade, and have something to say about equality that resonates with readers.

Feeling the same financial pain the traditional print publications are experiencing with the economic downturn and drop in ad revenue, there is no pleasure in seeing LGBT publications shutter. Bloggers and activists are highly dependent on the strength of news media with an LGBT focus that has a budget to send reporters to do stories the online activists simply don't have the funds to do. It's a symbiotic relationship as well -- many LGBT reporters want their stories linked on high-traffic or influential gay blogs because it expands their reader reach, and builds support to continue doing the work critical for both journalism and the equality movement overall.

Honestly, I have problems with this shield law for other reasons -- why is the federal government getting into the business of regulating journalism to begin with? Surely there are constitutional issues at play here. But that's a different topic worthy of debate...

So simultaneously as traditional news media is under financial fire, citizen journalists are about to take a hit of epic proportions with the aid of a Democratic Congress. Imagine that. Thanks, Chuck. You can give him a ring at (202) 224-3027.

 
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You aren't screwed...
Bloggers are simply going to have to outsmart them.

All you have to do is work as an independent contractor for a news agency. No one is saying how much that news agency has to pay you. It could be a dollar a year.

So, all of you A-list bloggers need to get together and set up a news agency. The person who runs it will be your boss and supply you with your press credentials.

You will need to set up something like Triond:

http://www.triond.com

This will allow bloggers to submit their stories. And, just because a story is submitted, that doesn't mean the news agency has to use it.

Bloggers will apply to be reporters for the news agency and no one will be turned down for a position. The news agency will be supported through donations (wink, wink) and then the blogger will get a paycheck from the news agency.

This would require a few tech savvy people to run. And, they could earn a nice part-time income through a portion of the donations.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


In addition...
The news agency that you set up will end up being the biggest in the world. Won't that be a slap in the face to the "real journalists" who are so resentful of bloggers?

Call the news agency something like Citizen Press Corps (CPC).

You know the right people to get ball rolling on this Pam.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


[ Parent ]
sure, nothing to it
i'll set this up in my ample spare time.  

Lurleen on Twitter

[ Parent ]
If I didn't know better
I'd swear you were being a tad sarcastic! ;)

Seriously, is there any practical way bloggers could form a coalition/ non-profit organization/ union/ etc that would meet a bare minimum requirement?

"It goes on one at a time, it starts when you care to act, it starts when you do it again after they said no, it starts when you say We and know who you mean, and each day you mean one more."


[ Parent ]
Why bare minimum?
If people are going to do this, they should do it right. They should make sure that it is something sustainable.

If bloggers can put together their multi-million dollar conventions, they can certainly create a news agency.

You can bet that someone like Rupert Murdock will do this for his conservative bloggers and make a profit from it.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


[ Parent ]
Excellent point
I love the scope of this... and have no damned idea how to implement! ;)

"It goes on one at a time, it starts when you care to act, it starts when you do it again after they said no, it starts when you say We and know who you mean, and each day you mean one more."

[ Parent ]
Negativity breeds failure
No one is asking YOU to do anything. I was addressing Pam and other notable bloggers.

But, thanks for Debbie Downer routine.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


[ Parent ]
Chuckie Schumer Can Go Screw Himself
The only way they can shut me up is if they turn off the server my ISP uses.

Until that happens, my voice will continue to be a part of the reality-based community.

People ask, "How have you guys managed to stay so long?" I tell them, "Don't sweat the small stuff." It's mostly small stuff.


Pam

Honestly, I have problems with this shield law for other reasons -- why is the federal government getting into the business of regulating journalism to begin with?

It's actually quite simple - to control the message.


evidentiary privilege
The whole point of an effective shield law is not to regulate journalistic speech but to remove it from the reach of the courts. Just about every state has some form of it. The Feds don't. And now Schumer wants to restrict it to the old-fashioned media.

Hell, why doesn't he restrict it to media who use hot-lead linotypes, while he's at it?

See link for example of one such law.

http://info.sen.ca.gov/pub/99-...


[ Parent ]
I agree with Fritz
Except I propose something simpler.

Then again, I'm really pretty good at this letter of the law stuff.

In looking at the substantive portion available (though not the bill in full, which may change things) there's a fairly cheap and easy way to deal with it.

First, create a business structure.

Next, provide a salary of 1.00 annually, depending on performance with a minimum growth requirement of 1% per year.

Then, acquire 10 subscribers at 0.50 per year each to a newsletter.

Publish said newsletter and mail it out to them. Once a year. May is nice.

At that level, you qualify beneath the rules for reportage and filing, yet still have all the effective value necessary for the law, as described above, to be in place for an independent blog.

Also, you cover costs for the mailing through subscription fees, and can, if you so choose, sell advertising space within said newsletter, which can be anything from a broadsheet (which has certain appeal from my perspective) to a folded multipage magazine.

I'm fairly certain, as well, that If I see this huge gaping hole so fast, that our opponents will see it equally as quickly, and are already organizing to take advantage of it.

Just in case.

http://www.dyssonance.com  Breaking all the rules...


You'll also have to include a mechanism for providing press credentials
That can be done through an online form process. But, it is essential that bloggers have access to them and that they are recorded by the organization.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


[ Parent ]
actions have consequences...
I hope there's serious pushback against this law, and I will certainly do what I can. Towards that end, here is the current version of the bill, as far as I can tell (on a site with some very sophisticated markup tools -- go there, and make your opinion known!)...

(...but I'm not seeing the quoted text in it. Maybe it has already been excised? (Note that they've been trying to get this passed since at least 2005; Google "Free Flow of Information Act", and you'll see...)

That said... if it does pass, I think the consequences will not be what they expect.

It will force us -- the citizen media -- to get organized.

What is the definition of a "salary" -- how about $1/month? What is the definition of "newspaper" -- could it be 2 pages published annually? What is the definition of "news service" -- would Issuepedia qualify? Hell, wouldn't The Blend qualify, if you just stuck a box somewhere in the sidebar offering to sell nonexclusive commercial rights to your posts?

If any blog can become a "news service", and designate a blogger as a "journalist" by giving them $10 (which they can then donate back...) and an ID, then we'll just have to set up the infrastructure to make that possible. Which would certainly draw the blogging community together more tightly, I should think.

Brainstorming seems called for, if this bill looks like it might succeed this time.


I'm with you woozle...

How about the Blend becomes a Paypal 'seller' and all who choose 'subscribe' for $1.00/mo or something?

Anyone out there a corporate lawyer and could set up a  Blend, Inc. for us to be shareholders of?  Pam is COO, of course  ...  (and Kate, VP of 'everything else'.) 



It's the Hammer of JUSTICE,
It's the Bell of FREEDOM,
It's the Song about LOVE between,
my Brothers and my Sisters
...All over this Land.


[ Parent ]
Interesting suggestions as to how to get around it but..
why? I thought freedom of the press was meant to allow individuals to speak up against an oppressive gov't and prevent it from silencing the individual. Isn't that what the First Amendment is about? I mean, the Rep already sliced and diced the Fourth. Are Americans going to allow them to slice and dice the First too?

My message to Schumer, sent on his website (which, of course, he'll ignore because of the non-NY zip code)
I find your proposed amendment that would leave citizen journalists unprotected to be the height of arrogance.

We help to vote in a Democratic majority and this is the thanks we get?

Why don't you just stick an 'R' by your name and get it over with, because if you think that, if that passes, the same people who voted Democratic in 2006 & 2008 will do so again in 2010, then you're kidding yourself. Proposals such as your amendment just bolster the position of those who feel that voting is a meaningless exercise. I'm not in that number yet, but - between Max Baucus selling out the vast majority of Americans, Harry Reid not seeming to give a damn about the Employment Non-Discrimination Act and your insult to the free press - they're making more sense every day.

>^..^<


It sounds like a lot of other news sources are also affected
The Seattle Post-Intelligencer stopped publishing print editions some time ago and went to an online-only format. If I am reading this bill correctly, their reporters would not be protected, nor would any reporter who works for a "paper" in a similar situation.

Plus ça change, plus c'est la même merde.

True feelings
In the waning days of the Bush Presidency, I was really worried that the "mainstream" news sources were not reliable.  I slept at night knowing that if something went down, the blog world would report it honestly.  And the wingnuts are always crying what the forefathers intended.  Well, this sure is hell not what they intended.

From a business/law aspect, I would concentrate on stopping the legislation first.  The IRS can be a formidable foe when it comes to a "business".


Amendment 1 to the US Constitution
states "Congress shall make no law...abridging the freedom of the press".  Sounds like Chuckies idea is tottering on unconstitutional grounds.

History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government.-- Thomas Jefferson

4 + 1
"Congress shall make no law...abridging the freedom of the press".  Sounds like Chuckies idea is tottering on unconstitutional grounds.
Anyone think that Roberts, Alito, Thomas and Scalia will stop the evisceration of citizen journalism? Add in the Republican-when-it-matters (read: Bush v. Gore and pretty much anything that's pro-corporation) Kennedy, and the First Amendment goes buh-bye.

>^..^<

[ Parent ]
There is no constitutional protection shielding the press, however
From the Wikipedia article Shield laws in the United States:

A "shield law" is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the newsgathering and dissemination process.

"Freedom of the press" means that the government cannot establish laws about what can and cannot be published. It does not mean that people who publish are shielded from prosecution if they refuse to divulge their sources.

Plus ça change, plus c'est la même merde.


[ Parent ]
On reflection, I think I see the intent of the law's revision
Anyone can blog. If bloggers are protected behind the journalistic shield, then in theory anyone can hid behind the journalistic shield. If I have knowledge of fraudulent practices or corruption, and I blog, I can legally refuse to testify about those fraudulent practices or corruption. In effect, subpoena's can no longer be used to require testimony: all I have to say is, "I blog and I am protecting an informant."

Schumer is attempting to close that loophole. He is doing it very prejudicially and in a way that leaves important sources of news unprotected, but I think his intentions are good (yeah, yeah, good intentions, roads to Hell, I know.)

While expressing outrage and protesting the bill is good, I think it would be more productive to produce an alternative form of the law that reduces the potential for abuse.

Plus ça change, plus c'est la même merde.


I thought there had to be more.
I was tying to figure out his real intentions.  There are some really "less than good" blogs out there.  I guess we're still learning how to control this new fangled thing called the Internet.

[ Parent ]
Oh well, there's always this...
Photobucket

Question:  What does an atheist do when they fall to the floor and start "speaking in tongues"?

Answer: Get a CAT scan.


Take em to court
Maybe you can round up a lot of other blogger's and take them to court. This isn't fair at all.
Blogs are where I get my primary source of news. If it were not for good, dependable bloggers, there would never be any facts printed, on the air or anywhere for that matter.
Why are they trying to single out the blogs? Is it because they have the MSM in their pockets?
I guess I just answered my own question.

Good Intentions
"While expressing outrage and protesting the bill is good, I think it would be more productive to produce an alternative form of the law that reduces the potential for abuse."

Agreed.


the original language was fine
But then it was all of a sudden deemed too broad. The original language is here:

http://asne.org/portals/0/Publ...

(5) JOURNALISM.-THE TERM "JOURNALISM" MEANS THE REGULAR 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.
and
COVERED PERSON.-The term "covered person"- (A) means a person who is engaged in journalism; who- (i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes on such matters by- (I) conducting interviews; (II) making direct observation of events; or (III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form; and (ii) has such intent at the inception of the newsgathering process;


[ Parent ]
new version even worse
Finally had a little time to read the current version of the bill a little more carefully -- it's even more exclusive than the one quoted by the WSJ (emphasis mine):
The term 'covered person' means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

So the $10 salary workaround would not work with this anymore -- though ad revenue would seem to count. Is this worse overall, or better?

How do they define "substantial"? Does that give us more flexibility, or is it likely to be defined to mean whatever they want it to?

As far as suggesting a rewrite --

What I want to know is: (1) what is the original justification for distinguishing "journalists" from ordinary citizens, and (2) how should the distinction between "journalists" and regular citizens be re-defined for the Internet age?

Or, in other words, why do we still need journalists as a protected class, when anyone can publish text available to hundreds of millions of potential readers? -- why shouldn't everyone have those same protections?


exactly - why are they narrowing the definition this way
The whole thing is BS because all of the rewrites make it outrageously clear that the target is to protect traditional media (why does it need protecting from blogs?) and to eliminate viability of citizen journalists.  

[ Parent ]
Have you read what Goerge Will has to say about bloggers?
You'd think he was writing about the anti-Christ. There is huge hostility toward bloggers coming from traditional journalists. They don't like being scooped every day.

When you look for the bad in mankind, expecting to find it, you surely will.

- Abraham Lincoln.


[ Parent ]
this is real BS
Lemme see: the shield law wouldn't cover most bloggers, maybe not even Glenn Greenwald or Josh Marshall. But it would cover Glenn Beck.

Beck "gathers, prepares, collects" -- rather like a dung beetle -- but under this law, that's "Journalism", y'see?.

Sheriff "Honest Pete" Hartman: [walks into the press room to see the reporters drinking liquor] Ah, what's the idea, fellas? You know better than that. This is a government building!
Kruger: Uh, hi, sheriff.
Endicott: What'll ya have?
Sheriff: I got a good mind to have you all locked up!
Hildebrand 'Hildy' Johnson: The state's attorney wouldn't like it, because I bought that stuff from his brother.
-- "The Front Page," 1974


[ Parent ]
Nonsense for the masses
If this comes up, I will set up an impeccable surrogate organization to cover any bloggers that need cover. Whatever this reads, I can have everyone conforming in 48 hours at my expense so drop it. NOW

Don't get all fainty and smelling salts on me.

This is just a MSM distraction from the demise of any public option in the Senate or Congress.  

See the bright shiny mirror, don't worry over the bribe taking corrupt jerks in elected office who are selling your ass out.

I'm getting seriously irritated with the people who spread "the sky is falling" about a drop of rain.  Hell people there is a huge flood of money being totally wasted in the two wars. Scream about the stuff that matters.

In fact, if single payer does not happen, I'm going to put some cash up to get a third party started in the specific voting areas of the "no on single payers."  No, it will not be republican nor democratic party friendly.


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