How to decide who gets a shield

By now, most people who read the papers and watch broadcast news probably have heard about all they can bear about the exponential growth of new media and its widening acceptance, particularly among young people.

At some point, the average reader probably is entitled to take a long pull of coffee and say, “OK, we all know about your wrenching challenge, so change, innovate, whatever. Cope already, for God’s sake, and get on with it.”

Still, as two bills making their way through Congress and the California Legislature demonstrate, news organizations aren’t the only institutions struggling to come to terms with the digital future. Lawmakers -- and lobbyists -- in both Washington and Sacramento, like editors and news executives around the world, suddenly are finding that traditional categories and old reflexes don’t really speak to some of the most urgent questions associated with the growth of online journalism.

Take, for example, the proposed federal shield law that was voted out of the House Judiciary Committee shortly before the current congressional recess. More than 30 states and the District of Columbia have statutes that protect a reporter from being subpoenaed and forced to reveal confidential sources or to produce notes or unpublished material as evidence. California happens to have the oldest and most comprehensive of these laws, which vary somewhat state to state in the breadth of their shield.

The need for a national statute that would keep reporters and editors from being dragged into court and turned into de facto agents of the state was made abundantly clear during the recent trial of I. Lewis “Scooter” Libby. The government essentially built its case against Vice President Dick Cheney’s former chief of staff on testimony from reporters coerced into giving evidence by the threat of incarceration.

The bill that passed the House Committee is called the Free Flow of Information Act. It has bipartisan sponsors -- Rep. Rick Boucher (D-Va.) and Rep. Mike Pence (R-Ind.) -- and promises a pretty strong set of protections for journalists, though it exempts information involving national security and trade secrets. The real difficulty with the bill, though, grows out of a problem that has bedeviled every previous and equally well-intentioned attempt to enact a federal shield law. Protecting a journalist inevitably involves defining what one is, and nobody -- not even supporters of such protections -- ever has been particularly comfortable with the notion of having the feds dictate who’s a real journalist and who isn’t.

Looking at how Boucher and Pence, who both are guys with the interests of a free press at heart, struggled to cope with one of today’s knottier identity issues demonstrates just how well founded that discomfort is. One of the most pressing questions they had to confront was what to do about bloggers, the Internet writers who post mixtures of comment and reportage on their own websites, some of which accept advertising, some of which do not. Blogging is a passionate avocation for most of these writers, and only a tiny handful actually make their living from their online journalism.

For purposes of a federal shield law, you have to decide whether a woman promoting revival of the single tax movement from a wi-fi-enabled root cellar in the Ozarks is worthy of the same protections as the Associated Press pool reporter on Air Force One. The Free Flow of Information Act tries to address the problem by defining a journalist as somebody who derives “financial gain or livelihood” from his or her work. Obviously, the AP correspondent is covered, but presumably our brave and lonely single-taxer is protected only if enough people click on the ad for her sister-in-law’s fruitcake posted alongside the daily demands for a return to the silver standard.

Nice try, but it won’t wash.

First of all, it’s hard to believe that any federal court ever is going to uphold what amounts to a financial test for the exercise of a 1st Amendment freedom. (Let’s put aside the question of whether the federal shield would extend to reporters at the New York Post or San Francisco Chronicle, which lose money, or to the newspapers owned by Dean Singleton, where employment applications soon will come with tips on how to apply for food stamps.)

More to the point, if the 1st Amendment and its attendant protections don’t cover bloggers, then they’ve lost their intrinsic meaning. The fact of the matter is that many Internet bloggers -- opinionated, partisan, passionate and ill-mannered -- are exercising precisely the sort of speech that the Framers intended to protect: political speech. None of the men involved with the Constitution and its Bill of Rights could have envisioned anything like a modern newspaper or television network. In fact, given their notions of propriety and privacy, they probably would have found what we now regard as conventional journalism alarmingly distasteful. The bloggers, on the other hand, would have been entirely familiar types to the Framers: practitioners of pure political speech, which is what the 1st Amendment was written to protect.

You need not be an acolyte of Original Intent to believe that a federal shield law that excludes precisely the kind of voices the 1st Amendment was written to protect would be perverse and, ultimately, would do violence to the constitutional foundations of our free speech.

Better no shield law than one that does that -- even inadvertently.

Meanwhile, in Sacramento, Los Angeles County Sheriff Lee Baca has convinced Assemblywoman Julia Brownley (D-Santa Monica) to carry a bill making it a crime for law enforcement officers or court personnel to sell confidential information gathered in the course of criminal investigations or photographs. The growth of online tabs with a voracious appetite for what has come to be called “celebrity justice” has created a lucrative market for such things, particularly in Los Angeles. Brownley’s bill has cleared the Assembly and is working its way through the state Senate.

It is strongly opposed by the California Newspaper Publishers Assn., whose general counsel, Tom Newton, told the Los Angeles Times’ Patrick McGreevy: “It’s the Paris Hilton and Mel Gibson Protection Act. Fundamentally, it attempts to regulate news gathering and criminalize it.”

Baloney.

The California Newspaper Publishers’ Assn. does great work protecting your right to know what the government is doing in your name, but in this instance it is totally out to lunch. Didn’t these guys see “L.A. Confidential”?

It’s possible to make a strict 1st Amendment argument that checkbook journalism of the sort the online tabloids are employing is disreputable and corrupting -- not only of public officials but also of journalism itself. But Brownley’s measure doesn’t criminalize checkbook journalism; it proposes no penalty of any journalist, no matter how appallingly that journalist behaves. What it does do is put a stop to cops and deputies who would like to have a lucrative sideline of peddling confidential information about celebrities who have run-ins with the law.

The alternative would be that every police officer or court clerk with a laptop computer or a cellphone camera could become a potential stringer for some prurient online tabloid. There’s nothing in this bill that prevents a public-spirited law enforcement officer or court employee from acting as a whistle-blower whenever they witness injustice or misconduct. They just can’t charge for the exercise of their conscience.

Acknowledging that requires some fresh thinking from California’s journalistic establishment, just like extending the shield law’s protections to bloggers opens a door to the unforseeable.

That’s the thing about change and freedom. They’re messy propositions.

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timothy.rutten@latimes.com