Earlier this week, the Citizen Media Law Project joined 28 of the country's leading news organizations, press associations, and nonprofits dedicated to preserving free speech rights in filing a brief in the United States Court of Appeals for the District of Columbia Circuit opposing the contempt citation issued against Toni Locy, a former reporter for USA Today.

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.

The U.S. House of Representatives has taken an important step forward on the federal shield bill (H.R.2102), which we've discussed in greater detail before. The proposed legislation would protect those "engaging in journalism" from having to testify about or produce documents relating to their work, and from revealing their anonymous sources, except under specified circumstances. Yesterday, the House Judiciary Committee approved an amended version of the bill after two hours of debate, sending it to the House floor for consideration.

The amended bill is not currently available online, but reports (here, here and here) indicate that the new version extends protection to bloggers as long as they derive "financial gain or livelihood" from their journalistic activity. Some in Washington are unhappy because this definition of journalistic activity is too broad, complaining that the "financial gain or livelihood" standard opens the door to anyone whose blog or websites raises even a small amount of revenue through ads. Conversely, some online sources are trumpeting the amended version as a victory for bloggers, with headlines like "House panel approves legal shield for bloggers" and "US law to protect bloggers."

Both sides miss the (fairly) obvious point that the the recent revision narrowed the scope of journalistic activity protected by the law. Don't get me wrong. The revised legislation seems like a good start, and the "financial gain or livelihood" standard may well be broad enough to drive a truck through, providing plenty of room for enterprising bloggers. But the revised bill does potentially (and arbitrarily) exclude those citizen journalists who choose not to have ads or other marketing tools on their sites. We'll reserve judgment for now, monitor the bill closely, and follow up when a copy of the revised bill is available.