Bloggers: 1 step from censorship?

Federal Shield Bills Offer Rival Takes
On Who's A Journalist;
Bloggers Could Be Left Unprotected

February 23rd, 2009
by Michael Lindenberger
Source
The question of what makes a journalist is due for yet another round of debate, now that Congress is weighing two competing versions of a federal shield law for reporters.

Last Friday, the Senate introduced its own version of the Free Flow of Information Act, a follow-up to the House's action two days before. Both versions would provide new -- if limited -- protection against subpoenas for journalists, and both version contain a range of exceptions. Both bills were introduced in 2007 as well, with the House version passing overwhelmingly despite a veto threat. The Senate bill was passed easily out of committee only to die without a vote of the full chamber as the session ran out of time. (For details on the previous bills, see previous CMLP posts here, here, here, and here.)

Again, the 2009 bills differ in a key respect, namely in how they define journalists. The Senate bill is fairly straightforward and generous in this regard. It covers a person "who is engaged in journalism," and defines the latter by:

the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

The House version, on the other hand, puts limits on who is covered in a way that potentially leaves most bloggers and many others outside the protective zone of the shield. From the bill:

The term "covered person" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

"Substantial" isn't defined, but one would assume that many bloggers, student journalists and even those who freelance for magazines or papers that pay poorly, could have a hard time utilizing the protections afforded by the bill, should this version become law.

It's an old question, this issue of who qualifies as a journalist. And it has been part of the debate over the so-called reporter's privilege for decades, at least since Branzburg v. Hayes, 408 U.S. 665 (1972), the 5-4 Supreme Court decision that ruled against press protections in 1972. The Louisville Courier-Journalreporter Paul Branzburg lost the case, but the fifth vote came from a sympathetic corner. Justice Powell voted with the majority to compel Branzburg's testimony, but penned an enigmatic concurrence that has been cited by many federal courts to bolster the idea that there is some protection, no matter how ill defined, stemming from the First Amendment:

The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.

Branzburg, 408 U.S. at 709 (Powell, J., concurring). A federal statute establishing a qualified journalists' privilege would bring much-needed clarity and uniformity to this area of law, and it would also represent a historic step forward in vindicating the public's right to know. It'll be a shame, though, if a shield law passes with the House language that effectively shuts out most bloggers and other independent journalists. It will be journalism history, but with an asterisk.

Internet freedom: Heads up bloggers

A consistent concern in this blog is the restriction of our freedom to access information and to retain privacy as innocent citizens. Bit by bit, in front of our very eyes, as we fret about our finances, we are losing our freedoms. And I do not mean 'we' in the national sense, but rather in the global sense. This world we inhabit here, now, is very fragile and dependent upon technology and corporations none of us control.

Country by country falls to new measures to monitor and restrict its citizens movements and privacy, as 'we' are preoccupied with the media circus they wish to hypnotize us with. And it is working.

How many of you have thought how much information power you will have if your server begins restricting access to information and other bloggers? When sites disappear off the web, there is little to be done by the rest of us. Heads up bloggers. You will sorely miss what you do not pay attention to now.

How an Italian Judge
Made the Internet Illegal

November 28th, 2008
Italian bloggers are up in arms at a court ruling early this year that suggests almost all Italian blogs are illegal. This month, a senior Italian politician went one step further, warning that most web activity is likely to be against the law.

The story begins back in May, when a judge in Modica (in Sicily) found local historian and author Carlo Ruta guilty of the crime of “stampa clandestina” – or publishing a “clandestine” newspaper – in respect of his blog. The judge ruled that since the blog had a headline, that made it an online newspaper, and brought it within the law’s remit.

The penalties for this crime are not onerous: A fine of 250 Euros or a prison sentence of up to two years. Carlo Ruta was fined and ordered to take down his site, which has now been replaced by a blank page, headed “Site under construction”, and a link directing surfers to his new site. Hardly serious stuff – except that he now has a criminal record, and his original site has disappeared.

The offence has its origins in 1948, when in apparent contradiction of Article 21 of the Italian Constitution guaranteeing the right to free expression, a law was passed requiring publishers to register officially before setting up a new publication. The intention, in the immediate aftermath of Fascism, may have been to regulate partisan and extremist publications. The effect was to introduce into Italian society a highly centrist and bureaucratic approach to freedom of the Press.

A further twist to this tale took place in 2001, with the realisation that existing laws were inadequate to deal with the internet. Instead of liberalising, the Italian Government sought to bring the internet into the same framework as traditional print media. Law 62, passed in March 2001, introduces the concept of “stampa clandestina” to the internet.

The suspicion expressed by a number of commentators is that this extension of the law suited government and publishers alike. The state was able to maintain its benevolent stranglehold on the media, whilst publishers could use the system of authorisation and regulation as a means to extend state subsidies to their ventures on the internet.

What few noticed at the time was that this law had the capacity to place blogs on a par with full-blown journalism. It would only take a judge to decide that something as simple as a headline was what defined a “newspaper”.

http://cryptogon.com/