Below the Fold

From the Baltimore Brew crew, a behind-the-scenes look at what we do…

Brothers and sisters, we testified!

The Brew testified at Maryland House of Delegates' Judiciary Committee hearing on behalf on online journalists' rights to "reporter's shield" protection. (Photo by Fern Shen)"

At a legislative hearing in Annapolis where we spoke up for online journalists’ right to “reporter’s shield” protection, we discovered that lawmakers are fixing to define who is and isn’t a journalist in Maryland. (Photo by Fern Shen)”

 

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” Rosenberg (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?”

Brothers and sisters, we testified!
  • ushanellore

    Great piece of writing Fern. Love it.

    So an upstart ferrets out a hot political story and writes it and everyone wants to know his source, especially the bigwigs involved, then he won’t be protected because by definition he won’t be a journalist, due to the fact that’s his first time writing or he is not officially hired by an on line outfit or by a newspaper? What logic!

    I know how this thing goes with lawyers–What is a news outlet? What is a newspaper? Who is a journalist? They have to know clearly who is covered and today’s raucous on-line dissemination of information and cross pollination of ideas does not fit neatly into these definitions for clarity purposes.

    Nowadays, it seems, all that govt. wants to do is to dramatize how it has been impugned or the country’s security has been threatened by journalists, whistle blowers, renegades, leakers and whisperers. To coerce journalists to reveal their sources is to effectively shut the “big, fat mouths” of the tattle tales. That keeps the leaders of the Republic feeling secure.

    Source hunting is a bad piece of crap. Govts should stop pursuing this line of investigation. They should be more careful with their classified info and if they’ve hired treacherous back stabbers or conscionable workers vested in the general good who have divulged the bad govt. actors to the world, then govts have to lump it.

    Classified info–the whole shebang is a method to control the populace in the name of “our enemies will kill us if they find out!” Give me a break! They are killing us anyway and we are killing each other more than our enemies can ever do so– in numbers of killing and in brutality we far exceed our enemies–in fact our enemies are no competition whatsoever–we are imploding in our malls, schools, post offices and movie theaters. The more govts classify information the less democracy we have and it’s all for our own good is an old and tired control devise.

    I say to Papa Government–leave the tattle tales alone–you will always have them and cutting their jugulars to make examples of them or getting close to their jugulars through journalists is an exercise in futility. You can’t extirpate the Deep Throats out of existence. So why bother? We don’t need the Shield Law to apply to a broader swath of journalists. We need a more sensible govt and more reasoned judges on the federal benches who won’t order journalists to spill the beans reflexively because they imagine the feds will come crashing down because of puny gossip. And if you will come crashing down, like old Papa Nixon, then you probably deserve it. What is this place? The Soviet Union?

  • George Lopez

    I blame it all on these bloggers that pretend to be journalists. They don’t have any ethics. I see it all the time on sites like Patch.

    • ushanellore

      The bloggers who pretend to be journalists have nothing to do with it. The Shield Law is ignored to get to those journalists who have done good work and exposed the emperors without clothes or they have privileged knowledge of classified materials spilled to them by govt. workers and the govt. wants to get to the whistleblowers or whisperers or whatever you want to call them–the deep throats–using journalists for the purpose. The govt. wouldn’t bother to go after regular bloggers for slander or defamation etc. The govt. only wants the necks of the govt. workers who don’t show unshakable loyalty to their rulers, masters and payers. The journalists are no more than pesky excavators in the business of exhuming what the govt. wants buried. The govt. would love to bury those govt. workers who give journalists a spade and ammunition to do the digging. It uses the federal judges to get the journalists rattled enough to spill the beans and reveal the names of the so called scofflaws–the sources.

      From my observation bad journalism keeps you safe. It’s good journalism that gets you in trouble. The ethical ones are the ones who will be hunted down. Why would the unethical ones bother the politicians in power? Unless the unethical ones are getting too close for comfort, to the unethical practices of their leaders the unethical ones are safe. Then there is the catch all phrase to get us all rattled–remember the color coded terror days of Bush the younger–that catch all phrase is “For the safety and security of the public!” It is to the patriotism of the journalists that the feds appeal–if you love your country, they say, keep it to yourselves, don’t talk to the Deep Throats of govt. and if you talk to them tell us who they are so we can behead them–metaphorically speaking of course.

      And the noble journalists create quite a scene-they make grand gestures for the First Amendment and allow themselves to be thrown in jail. It’s martyrdom all the way and melodrama too. The News Channels gobble and spit it up. The mess will make you love the Patch for being such an inferior specimen of journalism. At least it doesn’t play the Bette Davis of journalism.

      The Shield Law has not helped some of the print journalists. We’re a nation of knock kneed silly folks. Recently the radiator in a university made a peculiar sound and a terror alert went out bringing a bomb squad in. A little white bag in a corner, a bit of talcum powder, green toothpaste anything can set the authorities off. We can write and rewrite the Shield Law but if a federal judge imagines a journalist is flouting the feds and that flouting will bring the Taliban knocking–no matter how fantastic that belief–he won’t allow the journalist to invoke the Shield law. He’ll order the journalist to name the source publicly. The paranoia of the feds knows no bounds and the First Amendment is an afterthought to that paranoia.

      Reveal govt. waste, govt. profligacy, govt. sex scandals, govt. financial shenanigans, govt. free rides on govt.’s own back–the govt. would want to disembowel you to find your sources and poor Patch has nothing to do with this irrational govt. fear of the First Amendment. The founding Fathers are shaking their heads while Osama bin Laden somersaults merrily in his watery grave.

  • Craig ODonnell

    ““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.””

    Really? Crank the Mickey Mouse guitar backwards a few times and we see freedom of the press as a ‘privilege’ by this one’s logic.

    Am I the only one who sees the sealed court records for the Colburn divorce as a more realistic example of “privilege” exercised by and for state employees?

  • Common Cause Maryland

    Just FYI – the bill moved out of the House and will be heard in Judicial Proceedings this afternoon. The bill was amended to only cover journalists acting under contract, so either the Senate needs to consider re-broadening the scope of the bill or more work will be needed on this issue in future years.