Debating a Shield Law for Journalists

I’m at the American Bar Association’s Communications Law conference, at a mock Senate hearing about the so-called “Free Flow of Information Act,” a bill that went before Congress last year but went nowhere. Some of the people who testified, including former NY Times reporter Judith Miller, is “testifying” before one former senator, Slade Gorton, and Bush’s former solicitor general, Theodore Olson, and several other folks.

As the faux testimony makes clear, there’s a clear and present threat to journalism right now as federal prosecutors and judges are showering subpoenas on reporters at an unprecedented pace. The chilling effect is unavoidable. But how to address this? The hearing sheds far more fog than light.

I waited a long time for anyone to mention citizen journalists. Gorton did, asking Miller, “Should the New York Times…have this privilege but a blogger should not?”

Miller didn’t answer. No one else has answered it, either. No surprise.

Someone else snidely asks if 9 million bloggers should be covered, and Al Jazeera. Olson: You’re asking the government to license who’s a journalist. (Correct.)

Finally an answer: No, bloggers shouldn’t be protected. “This is not about the rights of journalists, but the rights of sources,” says one witness, a law professor, totally missing the point.

In state laws, says First Amendment lawyer Floyd Abrams, no one talks about licensing. He would expand the privilege (and expand the language of the bill) to apply to individuals who “gather information to disseminate to the general public” (language from a court case) — a First Amendment protection. That runs into practical problems, he says, including using this as an argument against protection of any kind.