Bloggers Inc.: Becoming ‘legit’ is one way you might fend off pesky subpoenas
by Knute Berger
One accomplishment left out of Austin Jenkins’s excellent summary of the achievements of the Washington legislative session: the passage of a media shield law that will explicitly protect journalists from having to give up their sources and source materials in criminal or civil legal cases. More than 30 states have such laws; Washington was one of fewer than 20 that provided no specific protections. The Senate and House agreed on changes to the bill, and it has been sent to Gov. Chris Gregoire. She is scheduled to sign it into law this Friday, April 27. The law was first proposed last year but failed to pass, in part because of unexpected opposition from a Texas-based financial services company that had first-hand experience with going to court to get a reporter to give up a source and leaked documents. Despite its defeat in 2006, the effort had strong bipartisan support, including the backing of Republican state Attorney General Rob McKenna. McKenna is generally a supporter of open-government laws. He sees the shield law as protection for whistle-blowers who go to the media with inside information. (Any whistle-blower working for the AG’s office or other state agency, please e-mail Crosscut with your dish immediately. Let’s see how this new sucker works!) McKenna is also well known for cultivating good relations with the press, and his efforts, especially in the wake of the prosecution of New York Times reporter Judith Miller over Plamegate, made a shield law timely in the eyes of the media and First Amendment advocates. But last year’s bill raised concerns – one of them being whether the state should get to define what or who a member of the news media is. Another was whether that definition would be too broad or too narrow. Some media groups, like the Western Washington chapter of the Society of Professional Journalists, were concerned that the original definition of journalist in the proposed law as someone who got all or most of their income from journalism would exclude part-time freelancers and bloggers with day jobs. An income test didn’t seem fair, especially in this era of so-called “citizen journalism.” So the bill was back again this year, and these details were quietly hammered out. This time around, a journalist isn’t described by his or her income but by whether they work for a journalistic “entity,” including Internet-based ones. The goal, according to Rowland Thompson, executive director of Allied Daily Newspapers, a Northwest trade group, and the industry’s chief Olympia lobbyist, was to make a distinction between someone who posts information on a personal Web site or sends a group e-mail and someone engaged in a journalistic enterprise – someone, as Thompson puts it, demonstrating “a seriousness of purpose.” I’ve been in touch with Seattle attorney Bruce Johnson of Davis Wright Tremaine, the Seattle-based firm whose media-law group has a national reputation. (Full disclosure: Johnson used to represent Seattle Weekly in libel and other matters when I was editor of that paper.) Johnson helped draft the bill and tweak the wording. He also testified for it. Here’s how he describes the change between this year’s version and last year’s regarding freelancers and the blogosphere:
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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