Pam Spaulding

Hanging citizen journalists out to dry: shield-law amendment excludes unpaid bloggers

Filed By Pam Spaulding | September 29, 2009 3:30 PM | comments

Filed in: Media
Tags: Chuck Schumer, citizen journalism, Shield Laws

This may seem like a little inside baseball, but bear with me, because it will directly affect some of your favorite blogs.

At the Blend we have inboxes overflowing with emails asking us to cover this story or that event -- from advocacy organizations, tips from readers, PR firms, and the news media. It's pretty clear that the equality rights movement is highly dependent on blogs and citizen journalism to analyze, report and advocate in the unique way that we do.

Many of these LGBT-based blogs are done as a labor of love because there's certainly not enough money out there to quit our day jobs. Bloggers like myself, who subsidize the site with an unrelated day job are about to get a big F-You from Chuck Schumer if the roof isn't raised. Ad revenue is irrelevant here, btw; you have to be employed by an entity to be covered.

A recent amendment to the federal shield bill being considered in the Senate will exclude non-"salaried" journalists and bloggers from the proposed law's protections.

The law, called the Free Flow of Information Act, is intended to prevent journalists from being forced to divulge confidential sources, except in cases such as witnessing crimes or acts of terrorism.

Well, read the fine print to see how citizen journalists are left legally hanging out to dry. Schumer's amendment draws a distinct line between bloggers and "real journalists" that:

limits the definition of a journalist to one who "obtains the information sought while working as a salaried employee of, or independent contractor for, an entity-

a. that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and

b. that--
1. publishes a newspaper, book, magazine, or other periodical;
2. operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier;
3. operates a programming service; or
4. operates a news agency or wire service."

So there's no doubt that independent bloggers are the target here. At once we're considered irrelevant and so dangerous they have to legislatively set up a slippery slope that can land us in the clink or left penniless just for trying to participate in citizen journalism. Wow. The real issue here, however, is less the shield law than placing a definition of what is a journalist on the books. That will alllow pols, news outlets, state governments, etc. to deny citizen journalists press access because they are not "journalists" as defined by federal law.

It's a huge slippery slope and a loss for independent reporting by bloggers if this definition clears.

Marcy Wheeler of Firedoglake confirms that we're screwed:

To to be a journalist in Chuck Schumer's eyes, you have to both have a boss (at this point, you generous readers and Jane would count as my boss, but Jane doesn't have a boss, for example) and that boss' company must disseminate news on some other medium, in addition to the Toobz. Even free-lance writers or people like IF Stone (in the period when he ran his own newsletter) would be excluded from this definition of journalist.

Now, I'm on the record as a skeptic that this new law is going to work out the way the media thinks. I fear that the national security exemption will mean the law will protect people like Judy Miller mobilizing smears or the Rent-a-Generals spreading propaganda, but not protect Dana Priest or James Risen and their sources.

Still, this move pisses me off because it's a transparent bid to grant a powerful industry special privileges.

This is about ensuring that there is a wall between real journalists and the perceived unwashed masses of ignorant, unqualified bloggers who are mucking up the system. This is a serious issue, because I believe that reliable citizen journalists do have the respect of traditional media in some circles, but this legislative bid to create a firm wall is declaring war on us.

Nieman Journalism Lab's Zachary M. Seward, who previously noted the House's different definition of journalist, also expressed concern. "The shield law obviously needs a definition that limits its scope, but the professional definition, which now seems inevitable, would exclude student journalists as well as bloggers with a day job," he wrote.

It's ironic that this development surfaces right after I discussed the fairly accurate perception that blogging/advocacy journalism sits in a position that is ill-defined. (Huffington Post, "A Tech-Powered Gay Rights Movement"):

It's a headless monster in many ways -- digital activists in this world are frequently not Big Gay insiders. They are often part-time activists -- people who feel strongly about issues and use the Internet daily. They never intended to lead or even follow movement leaders; they are just handy with the Internet tools of the trade, and have something to say about equality that resonates with readers.

Feeling the same financial pain the traditional print publications are experiencing with the economic downturn and drop in ad revenue, there is no pleasure in seeing LGBT publications shutter. Bloggers and activists are highly dependent on the strength of news media with an LGBT focus that has a budget to send reporters to do stories the online activists simply don't have the funds to do. It's a symbiotic relationship as well -- many LGBT reporters want their stories linked on high-traffic or influential gay blogs because it expands their reader reach, and builds support to continue doing the work critical for both journalism and the equality movement overall.

Honestly, I have problems with this shield law for other reasons -- why is the federal government getting into the business of regulating journalism to begin with? Surely there are Constitutional issues at play here. But that's a different topic worthy of debate...

So simultaneously as traditional news media is under financial fire, citizen journalists are about to take a hit of epic proportions with the aid of a Democratic Congress. Imagine that. Thanks, Chuck. You can give him a ring at (202) 224-3027.

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That is great for the politicians...will silence a significant portion of the criticism of them for fear of having to give up sources..

This is nothing short of an attack on freedom of press, particularly in today's economy. It would effectively mean the end of freelance journalism in this country. That's a recipe for disaster.

It might be great for the politicians but it's awful for the rest of us.

What if there's another option? What about salary, is there a specific number (does it have to be like over $20,000 a year or something or could it be like $1000 a year)? What if we created an organization that raised funds to fund our blogs and bloggers and help them define themselves as journalists? Maybe they couldn't pay them enough to let them quit their day jobs (obviously!) but pay them enough to have them be covered under this law? What if an organization out there gave $1000 a year to Wayne Besen, Pam Spaulding, Joe Jarvis, Bil Browning, Andy Towle and... someone at Queerty to keep everyone above the fray? Perhaps this can be solved.

I haven't thought too carefully about this, but why couldn't you just call yourself Pam Co., and pay yourself $1 a year? Then you'd be an employee of an entity that disseminates information by electronic means that publishes an online magazine. Seems to me that would be covered under the definition. But I agree that it would be nice if they'd more explicitly include bloggers.

Well, I have to be honest that there are SOME bloggers I'd prefer NEVER got a press pass and were NEVER considered journalists:

...need I say more? Best they go ahead and make all bloggers have to meet a bit higher standard, and the ones that are REALLY serving a purpose and REALLY have a following WILL get seated.

Jillian has a point. The amount of pay is not specified in the law. Incorporation in one's home state is not that expensive, and needs to be looked into by bloggers. I have a blog and I will be looking into Georgia's rules of incorporation. I know what it is for a non-profit here, but blogs should be for-profit corporations. Remember the "skinning a cat" analogy. (I'm have two cats.)

So, Pam made us aware, and I am grateful for that. But, it is on all of us to "comply" with the law in the most loopholish way we can. It is for our self preservation.

Yes, a corporation would be one way to do it. But keep in mind that, under the law, there are several types of business entities other than corporations, including sole proprietorships, associations, limited liability companies, partnerships, and limited liability partnerships. The corporate form requires a separate corporate tax return, whereas the sole proprietorship does not.

Bilerico Media LLC owns Bilerico Project and our state sites, if worse comes to worse, we'd do exactly as Jillian suggests and pay all contributors something small like $5/month. Currently only Alex gets paid a salary, but that's more for editorial work than actual "reporting" since he doesn't go out to do any leg work for a story.

You know, even paying yourself a little bit of money, if that is a solution, would still have a silencing effect. There are plenty of people who start on this without any money or any more thought than "I'll register with" Now they have to create an llc and pay themselves a minimum amount? Plenty of people won't know how to do that. And they shouldn't have to. It would also eliminate anonymity that a lot of bloggers depend on to get their info out.

A lot of bloggers call themselves "citizen journalists," but I'm always pointing out to people that what I do here (and most bilerico contributors as well), is NOT journalism, but blogging, usually to people upset that I wasn't objective or unbiased enough (ummmm....). Usually they'll childishly say something like, "that's bad journalism since you didn't include my opinion!" and I'll be like, gee, i have no responsibility to include yours while expressing mine. this isn't an unbiased publication.

We're working in media, definitely, but I wouldn't call it all journalism. We should have laws protecting journalism as an activity, not journalists as people.

What if we had the LGBT bloggers fund and it helped keep the blogs on the up-and-up? It could raise money for the best blogs, make sure that they were properly credentialed, incubate some of the more tedious stuff for them--like servers, payroll, so on...

What do you think? Unworkable? Workable?

As a conservative it is interesting to see some of you finally realize what a Congress led by Democrats is capable of. This is a drop in the bucket. The Fairness Doctrine will emerge and many, many more limits on your First Amendment Rights. So the question is: What are YOU going to say to the people YOU voted into office and are now limiting YOU?

I don't think working around it is the answer. This has to be directly challenged and beaten. It's nothing less than a wholesale redefinition of the legal interpretation of freedom of the press.

Consider what "the press" was at the time our original set of laws was written. Thomas Paine wasn't collecting a paycheck from a major news organization. Benjamin Franklin's work wasn't syndicated nationally. These laws were written precisely to protect citizen journalists like Paine and Franklin from politicians who, like Chuck Schumer, who seek to control and censor political opinions which are inconvenient to the party in power.

Not only is the precedent dangerous in the extreme (can you imagine if it were the GOP doing this? We'd all be screaming bloody murder and rightly so.), but it seems blatantly unconstitutional on its face.

Talk about a slippery slope. We need to fight this as the attack on basic civil liberties it is, not as an inconvenience to be worked around.

If this passes, it's the practical end of freelance and volunteer journalism in this country. We have to fight this for what it is, an attack on who we are and what we do, and upon those who read and enjoy our work.

This is an issue that transcends political ideology and we should advocate it with that in mind. If the far left and the far right can team up to protect the unrestricted free speech rights both sides prize and depend on, maybe it'll draw in those in the middle as well.

Becky, you have actually hit on something. This is not an issue that silences those of us in the LGBT blogging business, but the far right also has many blogs that would be affected by this. Even those with neutral and middle of the road blogs will be affected. Maybe as bloggers, maybe we ought to be screaming at the top of our fingertips and getting others to scream as well. Pam gave us the word, now we need to spread it.

Of course, we always need "Plan B."

I have nothing to contribute except what Timmay has already said. This particular pile of bovine excrement is too big and too noxious to just try to step around or hop over. We've got to work together and get rid of the crap.

Oh, not to mention the impact it could have on student journalists as outlined in this article:

The field of professional journalism has enough BS and dilution as it is. Not having a Shield Law that protects students so they can grow, learn, and seek to fullest extent possible? Sounds like there's nowhere for that to go but from bad to worse.