I’ve already argued that bloggers’ celebration about the outcome of the Apple v. Does case was premature. The structure of the American judicial system ensures that extending California’s journalist shield law is only useful to cases brought in California state courts, but not in Federal cases.
Unlike most of its states, Federal American law has no shield for reporters. Famously, under the infamous Supreme Court decision Branzburg v. Hayes, American journalists (and bloggers) have no public interest defense protecting them from contempt charges if they refuse to answer a federal court’s questions about confidential sources.
The current blogospher legal cause celebre shows why this distinction between state and federal law is so important. Californian video blogger Josh Wolf is in a federal prison (in California) right now because he refused to hand over unpublished material he shot of a the anti-G8 protests last year.
The federal courts claimed jurisdiction because one of the police cars set alight during the demonstration was partially paid-for with federal tax money. If that had not been the case, this would have been a California state case, subject to California’s shield law, and Wolf would be a free man.
One group of Congressmen is campaigning for the Free Flow of Information Act of 2006, a federal shield law for journalists that would partially overturn Branzburg.
This is certainly a step in the right direction. There’s just one minor problem — the proposed law defines ‘journalist’ as a person who “for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, reporting, or publishing news or information as a salaried employee of or an independent contractor” of a news organization.
So much for protecting the free-expression rights of bloggers.
Moreover, not everybody agrees that journalists, however defined, need or deserve this sort of protection. The view held by journalists (and now a few bloggers) about shield laws is very different from the general public, who frequently object to the notion that journalists should not be compelled to give evidence in court. The argument that compelling journalists to violate their promises not to identify a source undermines whistleblowers’ trust in journalists, making aggressive reporting impossible, doesn’t sway many non-journalists, who see it as arrogant professionals seeking to be above the law. This is a misguided view, but a very prevalent one.