Does The Shield Law Apply To Bloggers & Citizen Journalists?

Texas Law Blog has taken a look at Rep. Aaron Pena’s proposed Sheild Law bill, HB 382.

And, it seems we may already have a legal quandry, difference of opinion and debate over whether or not bloggers are covered by the “shield law.”

I concluded last week that the vast majority of bloggers would be covered. I arrived at my conclusion based on the definitions of “journalist” in the bill.
Bradley at TLB comes to a different conclusion:

With the current definition of “journalist,” traditional bloggers would not receive the privilege despite the fact that many traditional media outlets now have blogs and their reporters would receive the benefit of the privilege. It seems to me that if the privilege is going to apply to a blogger for the Austin American Statesman (see Staff blogs on Statesman.com and Austin360.com) it should also apply to bloggers out there like the Burnt Orange Report (or TLB for that matter).

It should be noted that Bradley is a lawyer, and I am not. However, I’d like to give you my idea on why I think some but not all bloggers (a wider group than Bradley talks about) would be covered.

First, let’s look at the definition of “Journalist” in the bill:

“Journalist” means a person who, for financial gain or livelihood, is engaged in gathering, compiling, preparing, collecting, photographing, recording, writing, editing, reporting, investigating, processing or publishing news or information in a tangible form that is distributed or intended to be distributed to a group of people by any news medium or through any communication service provider. This includes anyone who supervises or assists the journalist in gathering, preparing, or dissemination of news or information.

I hinged my interpretation on the term, “for financial gain.” Admittedly, that is a weak anchor but any blogger with a BlogAds strip or GoogleAds in their pages would be defined as a journalist because they do it for “financial gain.” Even if that isn’t their primary source of income (note it says “financial gain or livelihood” in the text), it would allow a blogger to claim they blog for financial gain, thus affording them the protections of the shield law.

Is that kind of a weak argument? Yes and no. I believe it is an argument civil appellate courts would uphold should the issue arise. Does this leave out bloggers? Yes. Charles Kuffner, for example, runs no ads on Off The Kuff. He’d be out solely under this definition.

My gut feeling is every blogger with GoogleAds on their site is covered in theory.

The fact is that it will most likely require a court ruling to know for sure unless the bill is amended.

I’m going to send an email to Rep. Pena and ask him about this issue as well.

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