This is the first in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we'll take up is choosing a business form for online publishing activities. There is increasing awareness that, especially if you publish content in collaboration with others, it may not be smart to simply leave the relationship "natural" or informal.

Eric Freedman, a law professor at Hofstra University School of Law, has an article entitled "Reconstructing Journalists' Privilege" coming out in the Cardozo Law Review. The article is part of a symposium issue that includes pieces by an impressive list of scholars, including Anthony Lewis, Max Frankel, Victor Kovner, Joel Gora, and Rodney Smolla.

Yesterday, the U.S. House of Representatives overwhelmingly passed -- for the first time ever -- a federal shield bill by a vote of 398 to 21. This follows on the heels of the Senate Judiciary Committee's passage of a similar bill on October 4. The House version, however, makes a critical change in the language regarding who is entitled to the bill's qualified protections by excluding those who do not receive "substantial financial gain" for their activities.

Under the House version, H.R. 2102, a "covered person" is defined as

I've highlighted the new language in the quote above, which came about as the result of a last minute amendment by Representatives Boucher and Pence, two cosponsors of the original bill that did not include this ill-conceived requirement. In contrast, the original version of the House bill extended its coverage to any person "engaged in journalism," including "a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

This change significantly narrows the bill's coverage and is plainly aimed to exclude non-traditional journalists. But it doesn't just exclude those whom some in Congress derisively call "bloggers." The new definition would likely exclude many freelance journalists who must rely on other work to supplement their incomes. Do we really want judges to be deciding whether a journalist is earning enough money to qualify for protection?

More to the point, is financial remuneration the criterion we want to be using when we draw the line between those who are entitled to engage in journalism under the protection of a federal shield law and those who must venture forth unprotected? It seems to me the answer is no. To limit the privilege only to journalists who receive "substantial financial gain" misses the point of how media and journalism are evolving. Most crucially, it misses the growing -- and essential -- role of citizen media creators. They are the closest analog since the nation's founding to the Tom Paine-style pamphleteers the First Amendment was designed, in part, to encourage.

Yesterday our very own Mary-Rose Papandrea, a professor at Boston College Law School, testified before the Joint Committee on the Judiciary at the Massachusetts State House regarding a proposed shield law. For most of the hearing, the questions focused on the scope of the privilege (the bill proposes an absolute privilege for the identity of sources and a qualified privilege for newsgathering materials) and not on who would be covered under the privilege.

However, near the end of the hearing, Senator Robert Creedon expressed concern about extending the privilege to bloggers, describing them as "loose cannons." Papandrea, together with Lucy Dalglish, Executive Director of the Reporters Committee for the Freedom of the Press, responded that the term "bloggers" is ill-defined and includes many journalists from the mainstream media. Given that it would be unwise to place internet communications outside the scope of any shield law, Papandrea and Dalglish argued that the better answer would be to define those covered under the law by their function - i.e., whether they are disseminating information to the general public. Papandrea also pointed out that the proposed shield law would not immunize bloggers - or anyone else - from libel suits, which appeared to be Senator Creedon's primary concern.

You can track the status of the Massachusetts "Free Flow of Information Act" at OpenMass.gov.

Last week I noted that the Texas Senate had approved the "Free Flow of Information Act" and sent the bill to the Texas House of Representatives.  Well, that was short lived, as the bill has now died in the Texas House.

According to the Reporters Committee for Freedom of the Press, the bill

In announcing the introduction of shield legislation in the U.S. House of Representatives on May 2, 2007, Representative Mike Pence (R-Ind.) commented: