Yesterday, I had an unusual (for me) experience – I testified in Annapolis on behalf of a bill.
Turns out, Maryland’s shield law for reporters does not fully include online journalists. Aiming to correct the problem, Del. Samuel I. “Sandy” (D-Baltimore) introduced HB-385. I agreed to go down, as the editor/publisher of Baltimore Brew, and chime in on its behalf.
Most states have shield laws to protect reporters’ privilege – the right of journalists to refuse to testify as to information or sources of information obtained during the news-gathering and dissemination process. Simply put, it’s the idea that the government can’t make reporters reveal who they’ve talked to or what they learned or were told in the course of doing their job.
It does come up. And geography is everything. The shield can be strong for a reporter or weak, depending on where in the United States his or her employer is based.
A high-profile recent example came up last year when Colorado prosecutors subpoenaed a New York-based Fox News reporter seeking her testimony about a source in her reporting on the 2012 Aurora movie theater shooting.
To keep Jana Winter out of jail, it took a ruling by the New York Court of Appeals refusing to require her to go to Colorado and testify.
In its coverage of the court’s December ruling, the New York Times said it made New York a kind of “safe haven for journalists.”
Attempts coming out Washington to legislate the issue nationally have shaped up to be a real First Amendment can of worms, with critics saying the appealingly-named Free Flow of Information Act actually threatens journalism by setting out a narrow, too-mainstream, corporate definition of who is considered a “journalist.”
It was quite a day, for me. Along with discovering that many things (for better or worse) remain shockingly the same since I last worked in Annapolis covering the Statehouse in the early 90s – super-lobbyist Bruce Berano still tromps the marble floors, Cafe Normandie still has the tasty tarte tatin – I learned also that a version of the national discussion about gate-keeping the press is going to be going on in Maryland too.
Protecting Self-Employed Journalists
The current Maryland law defines the news media as “newspapers, magazines, journals, press associations, news services, wire services, radio, television and any printed photographic, mechanical, or electronic means of disseminating news and information to the public.”
The law extends shield protection to anybody “employed by the news media in any news gathering or news disseminating capacity.”
Rosenberg’s bill would add another category: “An independent contractor or agent of the news media in any news gathering or disseminating capacity, including a self-employed journalist.”
You can imagine the testimony I provided, sitting in between Len Lazarick of Maryland Reporter, and James McLaughlin, associate counsel of The Washington Post (and a member of the Board of Directors of the Maryland-Delaware-D.C. Press Association.)
“What you may not know,” I told the House Judiciary Committee, “is the degree to which non-print, non-broadcast, web-only publications have become equal members of the national and local press corps.” (That was weird, I just quoted myself.)
I talked about the downsizing of mainstream media and how The Brew puts more professional journalistic boots on the ground in Baltimore, participating in news conferences with our peers in print and broadcast, and regularly breaking stories they follow, etc. I hope I wasn’t too ponderous. But I meant every word.
After our presentation, Del. Luiz R. S. Simmons (D-Montgomery) led the cross examination. While organizations like The Brew might deserve shield protection (Whew, I drove down there in the ice storm to get that point across!), others, Simmons thought, maybe don’t.
What about somebody who woke up one morning and decided they had something to say and got a blog or a Facebook page and called themselves a journalist. “Are you saying they would be covered under this?” Simmons asked Rosenberg and McLaughlin.
“I don’t like to see things so loosey-goosey,” Simmons said. “I’m unsettled by the reach of this bill.” Shield protection is “a privilege,” he observed, “not a right.”
Who Gets To Decide Who Is A Journalist?
Rosenberg and McLaughlin promised to sit down with Simmons and “massage” the bill, but the downstate lawmaker’s sharp questions and their various answers suggest that their mark-up session will cover some interesting territory.
Along with asking about the archetypal pajama blogger, Simmons wanted to know, who are these “contractors?” And what about freelancers?
Simmons might have a low opinion of bloggers and freelancers but cash-strapped mainstream media organizations are using them more and more. Major chunks of serious reporting at newspapers such as The Post are these days being produced by writers who are contract employees, McLaughlin noted, talking about it later with The Brew.
Exhibit A in his argument: reporter Barton Gellman, who has been writing about the explosive documents on National Security Agency activities leaked by Edward Snowden. Gellman has been working on contract for The Post and might not be covered by the shield.
He and other contract writers need shield protection explicitly extended to them too, McLaughlin said.
As for us, it’s all a little murky, but apparently, under the current law, being “employed by” The Brew covers the (very modestly compensated) Brew staff, along with the fact that we qualify as “news media” since we “disseminate news and information to the public” through “electronic means.”
But, would great reporting or writing provided to The Brew by journalists like Joan Jacobson or Antero Pietila at no charge to us (this has happened), not be covered by this shield protection unless state law is amended via HB-385? Should employment or money changing hands or someone getting a salary and benefits even be a way to determine who is a journalist?
As Simmons and Rosenberg begin massaging the bill, will they end up defining in former newspaper reporters like Jacobson and Pietila and out, people like crime blogger James MacArthur (the Baltimore Spectator) or Bonnie Lane of Word on the Street, the Baltimore newspaper for the homeless?
Some in the debate say that shield laws should protect journalism, not journalists. A remark by Rosenberg yesterday suggests he might be one of them.
“Wasn’t the First Amendment set up to protect the rights of pamphleteers?”