With news that the House of Representatives has passed a federal "shield" law that would prevent reporters from having to testify about most of their confidential sources, Markos finds himself conflicted:

I'm ambivalent about a federal journalism shield law. There are legitimate journalistic efforts that should be protected, then there's Judith Miller. But if you're going to pass such a law, it's good to see that the definition of "journalist" has been expanded beyond those working for the corporate media.

… Now, this legislation needs to be tweaked in the Senate to strip out the condition that protected bloggers be raking in the cash. It's nonsensical and doesn't appear designed to eliminate legitimate bloggers, or to gain votes as compromise language, but as a clumsy attempt to prevent people from availing themselves of these shield protections by merely throwing up a quick fake blog.

That's a legitimate concern, and one that could be dealt with by changing "substantial financial gain" to something along the lines of "substantial publishing history". Or by giving authors protection only from suits arising from legitimate published materials.

There's unfortunately only a handful of us bloggers that make substantial revenue from our efforts. We shouldn't be treated any differently than the myriad others who are doing just as valuable work.

We went through this in MDJ back when Apple was trying to get E-mails from Web sites that had leaked the company's confidential product plans (all professional journalism sites, all mischaracterized repeatedly as "bloggers" in an attempt to gain sympathy they should not have needed).

The problem is not the intent to protect journalists, it's in defining who a "journalist" is. There's plenty of shouting about the First Amendment, but not much about the later (and therefore superceding, if there's any conflict) Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I emphasized the troublesome part.

Under the law, a court may compel you to testify truthfully, in public, about events you witnessed or facts you know. The courts can't find the truth if they have no power to compel those who know it to share it, so you can be punished if you lie, and punished if you refuse to testify under subpoena.

Some people have a qualified privilege not to respond to subpoenas, or at least to be exempt from punishment for disobeying them, because the various legislative branches of our government have determined over time that it is more societally important for those people to be able to preserve confidentiality than it is for a court to be able to find the truth. You cannot be compelled to testify against your spouse, for example. Clergy cannot be compelled to reveal things that their parishoners told them in confidence, nor can attorneys reveal confidential information from their clients. These qualified privileges generally prevent people who seek help from family or professionals from being punished for doing so.

Nonetheless, it's pretty clear who is and is not your "spouse," your "minister," or your "lawyer." For there to be equal protection, everyone involved has to know (or at least be able to figure out) who does and does not qualify for the privilege. The very heart of "equal protection" is that the laws apply equally to everyone—your spouse gets the same privilege as every other spouse, your minister gets the same treatment as every other minister, and so on.

When a certain class of people get special consideration under the law, that class must be clearly defined and all who qualify must be treated equally. Ministers of one faith can't get the privilege if ministers of other faiths do not, for example. Prosecutors cannot decide to prosecute only black people who violate certain laws but not white people, and so on.

Therefore, if we want a reporter's shield, we must define who is a reporter. Every attempt to do so, to date, has been woefully wanting. Kos notes that the federal attempt involves earning a "substantial portion" of your income from journalism activities, but thinks that's too vague for part-time bloggers. The California law explicitly lists a range of jobs reporting for television, radio, newspapers, or magazines in "news-gathering," but it does not include bloggers either, even though the California Legislature revised the law in the Internet age and could have chosen to include them (and did not).

The appellate court in San Jose said that Web sites should have been included, but this is legally problematic because they were not, nor was there any language in the statute saying that people with jobs "similar" to those listed should be shielded as well. The court simply decided that they should be, depite the law's clear list of who is covered, and the fact that online journalists were not on the list.

If you can't define the class of people who can claim the privilege, then it's arguably available to everyone, as Kos notes with the "fake blog" comment. If everyone can avoid testifying by publishing something online, then subpoena power is dead. Kos's solution of having a "history" of blogging would rule out ordinary "citizen journalists" who find something really wrong in their own world and start a blog to expose it. For example, it wouldn't cover Karen Silkwood, had all that crap happened today and she started a blog to publicize it.

I'm not saying there shouldn't be a shield law in various circumstances. I'm saying that if there is, there needs to be a bright-line test for who does and does not qualify for the privilege, and so far, no one's even come close to creating such a test that satisfies even a fraction of the people they think should be covered. The federal proposal is no exception.

There may be a solution, but I don't know what it is. I just know this isn't really it.

Update: The ACLU also objects to the proposed law's language for similar reasons:

The ACLU urges the Senate to go further to defend the free flow of information by ensuring that the government is not the arbiter of who is covered by the journalists’ privilege and what information the public can receive.