Today in the United States, there is no legislation that allows bloggers to protect their sources. Yet bloggers have become a great way for the public — and journalists in particular — to keep informed about important topics. A survey from Middleberg Communications and the Society for New Communications Research released on September 22 found that 66 percent of journalists use blogs to assist in their reporting. This means blogs play an important role in newsgathering and the press. So why not legally protect bloggers and citizen journalists by allowing them to use anonymity and protect their sources?
The Case of Josh Wolf
The U.S. judicial system has already had one case that dealt with a blogger trying to protect his sources. The 2005 case of blogger Josh Wolf also emphasized the importance of online information to society. In July of that year, Wolf filmed a G8 protest in San Francisco. At one point during the protest, a police car was damaged during a clash between protesters and police. A cable station later aired some of the footage that Wolf posted on his blog, and it was then picked up by local affiliates of the national networks. Although Wolf denied having footage of the damaged car, a federal judge ordered him to hand over all of his unedited footage to a grand jury investigation.
Wolf refused on the basis of his rights under the U.S. Constitution’s First Amendment and a California shield law that allows journalists to refuse to name sources or surrender unpublished material and notes. He was sent to prison for a month.
As much as Wolf spending time in jail was unjust, imagine what would have happened if Wolf wasn’t a journalist and couldn’t argue his right to protect his sources? He would have been forced to give up his footage and thus become an accomplice in the arrest of protesters.
Usually bloggers don’t have the same legal recourse or access to advice as journalists. They often act and publish as individuals, and are not necessarily supported by a journalism organization. In France, for example, some bloggers had to shut down their blogs because they couldn’t afford the legal fees associated with defending their work.
Problems with Proposed Shield Law
As of today, 37 states have shield laws that allow journalists to protect their sources. On the federal level, a bi-partisan bill called the Free Flow of Information Act was first introduced in 2006 and was passed by the House earlier this year. However, the current draft has not passed in the Senate because of what some consider to be national security concerns. Even President Obama, who supported the bill as a senator, now seems to have changed his mind.
Negotiations are ongoing in the hope of finding a compromise. But even if the law is adopted, it won’t help citizen journalists protect their sources. The bill currently defines a journalist as a person who:
(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—
(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and
(II) that—
(aa) publishes a newspaper, book, magazine, or other periodical;
(bb) 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;
(cc) operates a programming service; or
(dd) operates a news agency or wire service;
As of now, one of the legislators’ biggest reasons for not including citizen journalism in that definition is that it could allow bloggers to remain anonymous.
The Anonymity Issue
Reporters Without Borders deals with issues related to anonymity almost every day. Being anonymous on the web has unfortunately become synonymous with behaving in a cowardly fashion, or posting offensive comments. But in many countries, anonymity is all about protecting the security of bloggers who risk their lives in order to publish information.
In Saudi Arabia, the use of real names online is very recent because most bloggers there are afraid of being arrested if they criticize the government. American citizen journalists don’t face these kind of restrictions or threats. For most of us living in the U.S., anonymity is not a matter of personal security.
But consider the example of Twitter user Elliot Madison. He was arrested by the FBI and charged of hindering prosecution after he allegedly used the social networking site Twitter to help protesters evade police at the G20 Summit in Pittsburgh. Madison was giving the location of the riot police on the ground, but so too were reporters and news helicopters. His arrest is certainly of concern, and it could have been avoided if he had the option of protecting his anonymity.
Legislators should add protection for citizen journalists and their sources to the Free Flow of Information Act. Otherwise, one of the key differences between journalists and citizen journalists will be that the latter must operate with no protection for themselves or their sources.
I agree that the proposed shield law needs to be extended to all journalists, regardless of medium of communication. But the case of Josh Wolf demonstrates the problem with finding the right definition of who should be covered. Wolf has stated before that if the court situation were reversed — that is, if one of the videotaped protesters sued the police for a civil rights violation — he would have been happy to turn over the video to help their case. We cannot expect members of Congress to write a shield law that will cover those who are making a political choice on when to participate and when to claim independence. That’s being an activist — a perfectly respectable endeavor, of course, but not one that will ever be protected by a newsgathering privilege.
Gregg Leslie’s point is well-taken. The idea that one covered by a shield law could also wear the hat of an activist and pick and chose when and to whom otherwise protected material might be divulged is a concern.
The greater good, however, will best be served by a shield law that offers broad, comprehensive protection across the spectrum of journalists, including bloggers and other citizen journalists. Today’s bloggers are the modern incarnation of the pamphleteers of colonial times. Those engaged in the pursuit and communication of news and political speech should be protected.
Josh Wolf (my son) did offer to show the judge the video from the very beginning to show that there was nothing on the out takes of any value. The US government opposed that. Josh was not in prison for a month. He was in prison for over 7 months, 226 days.
The problem with the Senate’s current version of the federal shield law is that it defines the privilege’s recipient according to the person’s principle occupation, not according to their conduct.
As is the case with Hawaii’s shield law (and many others), if a citizen journalist is gathering information for public dissemination in an attempt to initiate or further debate on a publicly significant issue, that individual is acting in the same way a traditional journalist would act. The only difference between the two is that citizen journalists don’t receive a paycheck for their reporting.
Why, then, should we limit the shield law’s protections based on a reporter’s financial status? Given the Internet, both blogger and traditional journalist have the ability to publish articles on the same matters of public concern. Accordingly, they should both be given similar protections.
(I publish a blog devoted to this area of law: http://protectingthesource.blogspot.com/)
Alas, we’re only kicking the can down the road here.
Once bloggers are shielded, what defines a blogger? Do you already need an ongoing blog? Does it have to be a “news dissemination” blog? Can you be just about to start a blog? Are you going to post in someone else’s blog?
The only logical end is to give every citizen the right to deny the police the ability to see the information the citizen has gathered. Since we long ago decided to give the police the power to–in some instances–compel cooperation from the citizenry, this would be a major course change indeed.
I’m all for shield laws, I’m dependent upon those myself. But we are in some uncharted water here and some attention paid to the consequences of new laws dealing with rapidly-evolving social media would be a good thing.
This is dangerous territory to travel. The bottom line (imo) is this: The USA is supposedly a free country. No one should be restricted by fear of reprisal in his/her right to express an opinion or report on an event or issue.
There are already laws in place to prosecute those who willfully post damaging untruths. Those who give an honest opinion or accurately report the facts, regardless of how unpleasant those facts may be, should have the same protections regardless of whether they’re “professional” media employees or just regular folks.
Having said that, I’ll also say this: Anonymous blogging is a bad idea. If you wish to have those protections then you shouldn’t have a problem with your name being out there for all to see. I sign my name on every post at my blog, and sources are provided when appropriate.
Bloggers should have the same protections as any reporter at the NY Times or USA Today, as long as we are willing to identify ourselves when we post. Identifying oneself is simply a matter of being responsible and standing by what you say.
Sometimes the truth is the biggest threat. Anonymity should be in place with journalists and bloggers when facts threaten a certain group in our country. Sometimes these groups could murder an innocent informant (i.e. journalist)- There is always that possibility when it comes to the truth. Someone is going to jail over the truth and it shouldn’t be the snitch or the informant.