Shield law may leave gap


Federal protections for reporters could exclude unpaid student writers





For many journalists, the passage of the Free Flow of Information Act through the House of Representatives was an important step in creating the first federal shield law, which would protect journalists from being compelled by federal prosecutors to disclose their sources and other unpublished material in most circumstances.

But many student journalists may find themselves left out in the cold. The bill’s current definition of who would be covered by the law includes an income requirement. Specifically, it defines a “covered person” as a journalist who works “for a substantial portion of the person’s livelihood or for substantial financial gain.”

Student journalists, who are frequently either unpaid or only nominally paid, might not be covered by the law, which concerns some First Amendment advocates.

“I am worried about any definition that has the potential to exclude student journalists,” said Kevin Goldberg, the legal counsel for the American Society of Newspaper Editors.

Many say the income requirement was included to alleviate the fear that amateur bloggers or non-journalists would take advantage of the legislation to avoid testifying.

“The fear is that the common citizen will wrap themselves in the cloak of journalism by writing something, anything, in their blog and claiming reporter’s privilege as a result,” said Goldberg.

In the end, the push to create a definition that would exclude non-journalists led to the income requirement.

“They were trying to come up with a workable definition of journalists … and not to let perfection get in the way of progress,” said Matt Lloyd , the spokesman for Congressman Mike Pence (R-Ind.) who co-authored the legislation. “There was concern about bloggers.”

But Goldberg said there was little or no discussion about the definition’s ramifications for student journalists.

“People had the right intentions but didn’t think of how it would affect this one subset of the (journalism) community,” he said.

Laura Rychak, a policy expert with the Newspaper Association of America, echoed this sentiment.

“The House members were concerned about creating a workable definition that wasn’t too broad and covered legitimate journalists,” she said.

Currently, the Senate’s version of the bill, which passed the Senate Judiciary Committee in October and is awaiting action on the Senate floor, includes no income requirement. But Goldberg said the final Senate bill likely will include some sort of income qualification.

Student journalists who are unpaid likely would not be covered by the legislation because of the income requirement. But those who are paid for their work may qualify for protection, even if the compensation is only nominal, as is the case for many student journalists.

“For college students that don’t make very much, any compensation can be considered a substantial financial gain,” Goldberg said.

Rychak said that courts will likely interpret the income requirement to include all paid student journalists.

“A paid student journalist could have a strong argument that they should be covered under the financial gain or livelihood requirement,” she said.

Though the possibility of student journalists being subpoenaed by a federal prosecutor seems remote, Goldberg said the situation could arise with federal prosecutors issuing subpoenas to student journalists covering anti-war protests on campus.

This would not be unprecedented. Though he was not a student, 24-year-old video blogger Josh Wolf was subpoenaed for video footage he had of a protest that turned violent against a Group of Eight summit. When he refused to turn over the tapes, he was charged with contempt and jailed.

“Take out video blogger and insert student journalist and you have your situation ready-made,” he said. “He was covering an event where college-aged or college students were protesting.”

Goldberg said the income requirement will not only put some student journalists at risk but also set a bad precedent.

“It’s a bad example to set to the next generation of journalists to say, ?We’re going to exclude you,’” he said. “It’s obvious that there is an importance in protecting college journalism and high school journalism, and it’s unfair that it’s being lost in the shuffle of getting this bill passed.”

Cite: Free Flow of Information


reports, Winter 2007-08