Rather than do an income test, the [House and Senate] bills adopt an "entity" approach. Any "entity" that regularly collects and distributes news by "any means" (including the Internet) is protected, and any "person" gathering or writing news who is working for – or simply has a contract with (such as a freelancer) – any such entity is also a member of the "news media" as defined.
So a blogger on MySpace is not a member of the "news media" but a blogger who has a contract with Crosscut is – and, if you want to do news gathering but do it on your own, you simply create an "entity" on your own, like our client Josh Marshall, who set up TPM Media LLC to host his blog, and you're protected.The Josh Marshall he refers to is the enterprising national journalist whose Web sites Talking Points Memo and TPM Muckraker are must-reads for stories like the Jack Abramoff scandal or Gonzalesgate. Bruce goes on to provide the relevant language in the bill:
(5) The term "news media" means:(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;(b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; or(c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection (1) of this section.The exercise points to the difficulties in defining journalism in the era of highly democratized media access, when almost anyone with a cell phone and a Blackberry can claim to be a member of the media. Thompson says that the 1999 World Trade Organization protests in Seattle were an example of how the police had a difficult time distinguishing protesters from media representatives. Prosecutors didn't want a law that muddied those waters further, nor a law that would protect everyone's e-mail. So, bloggers, gadflies, and citizen journalists, if you want the full protection of the new law for yourself and your confidential sources – assuming you're one of those citizen journalists who actually has sources to protect beyond radio waves from the sixth dimension – get thee to an entity or create one for yourself right now. When asked, Thompson says that he would recommend independent bloggers and journalists legally incorporate, not only to gain the status of a shielded entity but to protect personal assets from potential libel lawsuits. Forming a limited partnership is another path to "entity" status. Or, he says, maybe just getting a business license would be enough to qualify. Or running a Web site that sells advertising or subscriptions. But in the end, the law will have to be tested in the courts before anyone knows for sure whether it works for 21st century iterations of journalism. Maybe the new definition could be this: You know you're in the media if you have to lawyer-up like everyone else.
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