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States' Shield Laws Might Not Cover Online Journalists

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The Internet has lowered the barriers to entry for publishers. This complicates the question of who qualifies as a journalist when it comes to laws designed to protect the confidentiality of sources. How inclusive should shield laws be? A test case for this murky issue has yet to emerge. First in a two-part series.

When Adrian Lamo pleaded guilty in January to one felony count for unauthorized access to The New York Times' intranet, he let more than a dozen journalists off the hook. They had written about his hacking exploit, and in a letter last September, an FBI agent had warned that prosecutors would expect their assistance in nailing Lamo, whether they wanted to help or not.

If the case had proceeded to trial, that group of journalists might have ultimately faced an agonizing dilemma. They could have yielded to the subpoenas they had been told to expect and turn over their notes, e-mails, names of sources and all other material they had gathered on Lamo. Or they could have refused on principle and, if their lawyers' efforts to quash the subpoenas had failed, gird themselves for a stint in the slammer.

For anyone with an interest in how First Amendment law will evolve in an era when online media are becoming increasingly important conduits for news, a knock-down drag-out battle over the Lamo subpoenas would have been a fascinating spectacle. It could have helped delineate the scope of the laws that protect the confidentiality of journalists' work product, starting by resolving the threshold question of whether those laws cover writers whose work appears on the Internet.

The reporters targeted by the FBI included representatives of traditional media, such as the Associated Press, but also an array of Web writers. Some were reporters for online operations affiliated with print or broadcast properties such as WiredNews.com and MSNBC.com. Another of the targets was a correspondent for CNET News.com, an award-winning Web-only publication that has all the trappings and editorial infrastructure of a traditional news operation.

At least one non-traditional online outlet for news and commentary could have become a prime target for a subpoena in any trial of Lamo: SecurityFocus, whose editorial director, Kevin Poulsen, was incarcerated for more than four years in the 1990s for hacking-related offenses. Poulsen did not receive a warning letter from the FBI. But he was the first to write about Lamo's foray into The New York Times' computer system, and his reporting was credited in an FBI affidavit attached to the complaint against Lamo with bringing the crime to the attention of authorities.

If push had come to shove in the case, which went before a U.S. district judge in Manhattan, the reporters caught up in the Lamo prosecution could have tried to defeat the subpoenas by invoking New York state's shield law and the federal "newsgatherer's privilege." But they would be breaking new ground. No prior court has held that online journalists are covered by either.

The notion that a free press hinges on the ability of journalists to protect the identity of their sources is older than the Republic. In a celebrated trial in 1734, a colonial jury acquitted John Peter Zenger, publisher of the New York Weekly Journal, of a charge of seditious libel after he refused to disclose his sources for reports about abuses by a British governor. The first law to exempt journalists from the duty to testify in trials about their reporting was enacted in Maryland in 1896. A large number of other states followed suit only after the Watergate scandal of the early 1970s dramatically illustrated the vital role played by confidential sources in exposing governmental misconduct.

Today, 31 states and the District of Columbia have shield laws that give varying degrees of confidentiality to the sources, notes and other materials gathered in the course of work by journalists as variously defined. Most of the states that don't have a law at least have a more limited court-recognized privilege, while some states have both. Some of the statutes are quite clearly limited to traditional print and broadcast reporters while others are worded broadly enough that they most likely would be interpreted to cover online journalists. But as an analysis of the laws produced by the Reporters Committee for Freedom of the Press shows, none of the state statutes currently on the books specifically mentions the Internet. Nor have there been any state court rulings that have directly addressed the issue of whether shield laws cover Web journalists.

At the federal level, the majority opinion in a 1972 U.S. Supreme Court decision, Branzburg v. Hayes, said reporters have no right under the First Amendment to refuse to testify before grand juries. But the ruling said state legislatures and Congress could enact a statutory confidentiality rule to protect journalists if they wanted to. And the ruling left wiggle room for lower courts to limit the right to extract confidential information from journalists. Those restrictions have evolved through a series of appellate rulings into a limited federal "newsgatherer's privilege" grounded in the First Amendment. They protect the confidentiality of a reporter's work product unless the information sought is "relevant," "compelling" and can't be obtained by other means.

Congress, meanwhile, has never enacted a federal shield law, though dozens of bills have been introduced. "Unfortunately it's a difficult thing to get accomplished because media organizations really want an absolute privilege and a lot of legislators want a limited privilege that would apply only when absolutely needed, in certain circumstances for certain people," says Kevin Goldberg, an attorney with the Washington, D.C., firm of Cohn and Marks LLP and chief outside counsel for the American Society of Newspaper Editors. "That has made it difficult to get a groundswell of support."

Given the patchwork of widely varying state laws and the lack of any federal law, many journalists hit with a subpoena won't have any guarantee that they'll be able to quash it. Questions about who qualifies as a journalist under the shield law in question have been one stumbling block for many writers. The advent of the Internet, which has drastically lowered the barriers to entry for publishers, has vastly complicated that issue. But even in pre-Internet days, courts regularly tied themselves into knots over whether a particular shield law covers freelance writers, student journalists, documentary film makers, investigators for criminal defendants and advocacy groups such as the Anti-Defamation League -- all those who gathered information intending to compile it and pass it on to others and thereby laid claim to the privileges afforded to journalists.

In the most infamous such controversy, a writer in Texas named Vanessa Leggett, who spent a record 168 days behind bars rather than reveal her sources to prosecutors, was hampered by the fact that she was an English teacher with no background in journalism. And the true-crime book she was writing had not yet been published.

In addition to complicating the question of who qualifies as a journalist, the Internet also muddles the issue of which laws apply. Legal experts have been pondering the issue for years and are still baffled.

"Consider a person who lives in Maryland and based on an interview with someone in Michigan posts online to a journal headquartered in California with a server in Nevada, which is downloaded and subject to litigation in Colorado," says Mark Rasch, a former head of the Justice Department's computer crime unit and now chief security counsel at Solutionary Inc. "Which shield law applies?" he asks, offering no answer.

"Even in states with strong shield laws, anyone wanting access to a reporter's sources and notes could simply file a subpoena in federal court, where a judge could ignore the state law and apply the much more limited federal reporter's privilege," says Thomas Burke, a lawyer in the San Francisco office of the media law firm Davis Wright Tremaine LLP. "Better yet, someone seeking to obtain an Internet journalist's notes could take advantage of the fact that since Web sites are accessible everywhere, courts anywhere can gain jurisdiction over them. They could drop the subpoena in a state where the material is being read but where the shield law is not as favorable. So you can see how this can get complicated really fast."

Goldberg, ASNE's outside counsel, adds that the scope of a shield law "will vary not only by state but by judge, depending on how liberally a particular judge wants to interpret the law." A case in Alabama illustrates that some judges can be stingy indeed in their interpretation.

Last December, in a $20 million libel suit filed by a football coach accused of sexual shenanigans, a federal judge in Birmingham ruled that since the state's shield law specifically mentions only "newspaper, radio broadcasting station or television station" reporters, a correspondent for Sports Illustrated magazine isn't covered and must divulge his sources. That ruling is now on appeal. "One could extrapolate that ruling a little farther -- it was the first thing I thought about -- and conclude that a reporter for an online news publication wouldn't be covered, even if that reporter also worked for a print publication" affiliated with the Web site, Goldberg says.

Other state shield laws are amenable to more expansive interpretations. The New Jersey law, for example, is one of several that specifically cover traditional "or electronic means of disseminating news to the general public." New York's statute, which the journalists roped into the Lamo investigation most likely would have invoked, is also broadly worded. It covers any "professional journalist or newscaster," defined as one who reports and writes "for gain or livelihood" for a "newspaper, magazine, news agency, press association or wire service or other professional medium" for disseminating news to the public.

Paid reporters for news-oriented Web sites would most likely fit under that umbrella. But even the broadest shield laws may not stretch far enough to cover unpaid bloggers.

That's just as well, by some accounts. Laurence Alexander, a journalism professor at the University of Florida, asserted in an article in the Yale Law & Policy Review in 2002 that if shield laws were so broad that they covered anyone with the minimal skills needed to launch a blog, it would no longer be possible to distinguish who is truly deserving of a journalist privilege, and it could be lost for everyone. He proposed that to gain protection from a shield law, a journalist must be "connected in some substantial way with the news media." That would include traditional print and broadcast media plus "online news services, or any other regularly published news outlet used for the public dissemination of news." Alexander defined that as "information of public interest or concern related to local, statewide, national, or worldwide issues or events."

Alexander's proposal is broad enough to encompass Web writers and even bloggers who are affiliated with established media organizations. But other legal authorities believe shield laws should be considerably more inclusive. Linda Berger, a professor at the Thomas Jefferson School of Law in San Diego, for one, offered a more blogger-friendly alternative in a 2003 article in the Houston Law Review entitled "Shielding the Unmedia." (PDF file)

In response to Alexander's proposal, Berger declared that even amateurs with none of the training or experience of professional journalists can help ensure a "free flow of information," which is the purpose of the journalist's privilege in the first place. Her proposal, therefore, is designed to encompass neither individuals who fit the definition of journalist nor institutions that meet the criteria of a news medium but the "work process of journalism." This entails gathering truthful information for dissemination to the public on a regular basis. The privilege should cover anyone engaged in that process "no matter who they are, in what medium they publish, or, within certain limits, what kind of content results."

A blogger who majors in gossip or half-cocked speculation wouldn't pass muster because the content limits that Berger envisions include the notion that journalism is "usually truthful." Moreover, any outlet for writing that strives to be truthful must include "internal mechanisms" designed to insure accuracy and truthfulness.

Feedback from readers can perform the role filled by editors in traditional news operations, she says. But a blogger who wants to be considered a legitimate journalist would have to take the feedback to heart and correct or delete demonstrably erroneous postings. Anyone who "puts no premium on accuracy ... would not qualify for protection under this criterion," Berger writes.

Assessing truthful intent is easier than it sounds, she contends. Courts do it all the time in libel suits when they must determine whether the defendant exhibited a reckless disregard for the truth or falsity of a statement. It is certainly less subjective, Berger observers, than a "newsworthiness determination" or the value judgments by which Alexander and other stingy guardians of journalistic privilege would exclude bloggers from the protection of shield laws.

Editor's Note: This is the first of a two-part series by Mark Thompson. Next week he deals with correction and retraction policies for Web sites.

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Related Links
Cohn and Marks LLP
Davis Wright Tremaine LLP
First Amendment Center: Shield laws
Houston Law Review: Shielding the Unmedia (PDF)
Law.com: Alabama coach's libel case
New Jersey shield law
New York shield law
News Media & The Law: Vanessa Leggett
Reporters Committee for Freedom of the Press: The Reporter's Privilege
SecurityFocus
SecurityFocus: NYT network hacked
Solutionary Inc.
TLC: Kevin Poulsen bio
Wired News: FBI seeks notes
Wired News: Lamo cuts deal
Zenger trial
Related Story on OJR
Law Offers Internet Publishers Scant Guidance on Libel
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Kevin Goldberg, chief outside counsel, American Society of Newspaper Editors

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Mark Rasch, chief security counsel, Solutionary Inc.

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Thomas Burke, attorney, Davis Wright Tremaine LLP

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