Bloggers de-journa-listed by potential Senate rule

If you've ever seen a movie where a judge wags a finger at a reporter and orders him to reveal his source for something he's written, you're probably aware of the existence of various states' "shield laws," which legally protect a journalist's confidentiality and allow him to defy an order to reveal a source.

Many states offer shield laws of some variety, but federally there is no protection. In fact, the issue was previously decided by the Supreme Court (in the 1970s) that the press didn't have a unilateral right to protect sources -- although that precedent has seen various interpretations over the decades.

But now the feds are looking to formalize and nationalize shield laws with one of their own. But the new problem is one of definition: In an age where anyone can put up a blog who is a "real" journalist? And who gets protected from having to reveal the source of his information by the shield law?

In March the House passed a bill that would have defined a journalist quite narrowly, focusing only on people who made a substantial income from gathering news. But the Senate had been looking at a broader interpretation of journalist, "focusing on the process and craft of newsgathering," not the income it creates.

But as the Senate version of the bill has been working its way through Committee, it has now seen some key changes. Namely, the Senate definition of a journalist now coincides more closely with the financially-driven House version, requiring that a protected party must be a salaried employee or contractor for a commercial publishing operation.

That's bad news for bloggers who operate their own sites and don't make any money from them. If the Senate ultimately passes this version, there will be no real way out for writers who find themselves on the wrong side of a demand for the identity of a confidential source. Such was the plight of Josh Wolf, who was hauled in after posting a videotape of a public protest online. The court didn't feel he was "journalist enough" and jailed him for contempt after he failed to produce additional recordings of the incident (basically a vandalism issue). He ultimately spent about eight months in jail before being released, the longest time any U.S. writer has been held in contempt for failure to divulge a source's identity at the request of the court.

The lesson here seems to be: If you want the law to protect you and your sources, make sure you're getting paid by someone.