Bloggers & Twitterers Beware - Shield Laws Might Not Have You Covered!

The much debated iPhonegate pertaining to the alleged stolen iPhone 4G continues to perplex Apple, the authorities and the legal system. The Shield Law and even First Amendment rights can be challenged all the way up to the Supreme Court, as a result of this case. But perhaps the one group that may end up coming up short on this debate are those getting the least attention - the Bloggers and Twitterers!

Shield Law is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the newsgathering and news dissemination proces.  Dating back to 1972 with the US Supreme Court case of Branzburg v. Hayes, news reporters have been protected. Since bloggers and Twitterers did not exist back then, the question rises as to their legitimacy in being covered by these laws.

Could this case prompt the Supreme Court to revisit journalist shield laws?

Mark D. RaschMark D. RaschIn an NY Times interview conducted with Mark D. Rasch, former head of the US Department of Justice computer crime unit, he says "yes." Rasch supports his belief based on the fact that "Supreme Court this year, this term, has been hearing a lot of First Amendment cases." However, more importantly, the Supreme Court has not touched on journalist shield laws in three decades. He asserts, "There are a number of issues that would be right for the Supreme Court to decide, one of which is the extent to which bloggers and even Twitterers are protected by the First Amendment."

So does citizen journalism have the same rights as the traditional journalism?

Not only have the collaboration tools such as blogs and the microblogging platform of Twitter given ordinary folks the ability to write, research and analyze topics on any subject, they became online news sources that performed all the same functions of a traditional news or broadcast outlets - sometimes doing it better.

Bloggers are much more than people who have access to the Internet, have an opinion and wear a bathrobe. Rick Calvert, whoRick CalvertRick Calvert founded the BlogWorld Expo to showcase new developments in the blogosphere, thinks that anyone who regularly explores "the who, what, where, why and when [is] practicing journalism."

In 2008, Arianna Huffington and her highly-rated blog, the Huffington Post stated, "I fully support a federal shield law for journalists to augment the laws designed to safeguard journalists and their sources already on the books in 49 states. Indeed, I don't think the proposed Congressional legislation goes far enough, especially since it leaves open the question of whether it would cover bloggers and other independent journalists.

One test for the distinction between journalists, blogger and Twitterers is the  interpretation of the Shield Law as it stands. The current version of the bill extends shield protections to those who "engage in 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."

Democratic Congressman Rick Boucher of Virginia stated in 2007 that under that definition, bloggers would indeed be considered journalists.

The same might hold true for Twitterers. However, Twitter differing from traditional journalism and online blogs is a presentation of information that may lack fact-checking - and runs the risk of being false or misinterpreted. However, Twitterers like bloggers run the full gamut of information dissemination. While there may be some that lack the editorial checks and balance at the one end, a good percentage of bloggers and Twitterers, like journalists do check the facts of their stories and often provide thought-provoking editorials, some of which have been award-winning.

While the status of the Twitterati is sometimes viewed as more of gatewatcher than a gatekeeper, journalists and bloggers serve as curators of the Twitterstream to determine what is really newsworthy or not. In essence, they are continuing the fact-checking process.

Apple sending the police on a raid to break into Gizmodo editor Jason Chen's home and confiscate his computers is a harsh tactic and another legal issue entirely. However if Apple's sphere of influence has that much power, perhaps it is important for bloggers and even Twitterers to be bundled under the protection of the Shield Law's definition of journalism. While I did not agree with Gizmodo's checkbook journalism practice of paying $5000 for the story, I do believe they have the right to tell their story.

If companies like Apple can cause this type of ripple-effect, perhaps journalism of all types should have even more say, not only pertaining to the public sector, but also the private one. Freedom of Speech is our most sacred constitutional right, and as such I think the Supreme Court might need to step in and sort this one out for all its citizens.

For a lighter, more humorous take on this same topic, check out "Is Apple's 'iCops & Robbers' A New iPhone 4 G Game App?

Sheild Law CartoonSheild Law Cartoon

May 4, 2010
by Anonymous

Bloggers & Twitterers Beware - Shield Laws Might Not Cover You

Great post there! I think fact-checking is very important even for bloggers and Tweeplers. Although we bloggers may not have the same rights as journalists, I don't think anyone can force one to testify against something/someone - even if pressured to - if we don't want to. What do others think?

May 6, 2010
by Anonymous

ye gods

Before you continue down your twee road of thinking the shield law is a blanket protection for anything any member of the press choses to do in the course of reporting on a story, read Cincinnatti Enquirer vs. Chiquita Banana.

The shield law applies to sources. It is not a blanket protection for the press to break any law they feel like, and that is rather important.

Contrary to what people learned in kindergarten, "Finders Keepers, losers weepers" is not actually a law. In california the law is pretty clear about this. If you find something, you have to either try to return it to the owner, or you give it to the cops. Period. you don't own it because you find it, not legally, and you most certainly aren't allowed to sell it. at that point, there's a few other crimes that come into play, revolving around the sale of stolen property.

Note, if you will, that Engadget, who also reported on the *same* phone, with pictures, is not in trouble. Why? Possibly they didn't pay to 'own' the device? Hmm...maybe. Engadget isn't getting much of any beef from Apple over it.

Gizmodo, for whatever reason, decided to pay to transfer 'ownership', and that is where they went wrong.

This isn't about sources, it's about committing real crimes to get a story. Just like you're not allowed to hack into Chiquita Banana's voicemail, you're not allowed to trade in stolen property. those are crimes. even for journalists.