80th Legislature: Another Sheild Law Bill Appears To Protect Bloggers

State Rep. Corbin Van Arsdale (R-Houston) has filed HB 2249, which is another “shield law” bill.

It’s different from previous sheild law bills in that it appears that it may offer some protections to bloggers. Whether or not that was the intention of its author remains to be seen.
How it offers that protection is rather complicated and requires reliance on sections of federal law.

But first, an important note: If you read HB 382, Rep. Aaron Pena’s original Sheild Law proposal, you could infer that that legislation offers similar protections as this one, as it refers to the federal statute below. However, I believe there are a couple of other elements in this bill that, as a result of being specifically spelled-out, are key to this bill being more favorable to bloggers than the older version.
In order to determine that bloggers are covered by the legislation, one must look to the definitions that Van Arsdale’s legislation would add to the Civil Practices & Remedies Code.

First, it defines a “communication service provider” in a number of ways, including the term “information content provider:”

an information content provider, as defined by Section 230, Communications Act of 1934 (47 U.S.C. Section 230)

Here is how 47 U.S.C. Section 230 defines information content provider:

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

Then, you have to do some close reading to catch what may be a loophole that would protect bloggers.

Let’s take a look at the definition of “Journalist” as it is contained in the bill. It would appear to protect professional bloggers:

“Journalist” means a person who for financial gain, for a substantial portion of the person’s livelihood, or for subscription purposes gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider and includes:
(A)  a person who supervises or assists in gathering, preparing, and disseminating the news or information;
(B)  a person who is or has been a journalist, scholar, or researcher employed by an institution of higher education; or
(C)  a person who is on a professional track to earn a significant portion of the person’s livelihood by obtaining or preparing information for dissemination by a news medium or an agent, assistant, employee, or supervisor of that person.

Now, you may read that and automatically assume that the language would cover bloggers who aren’t bloggers on a professional basis because of the “subscription purposes” and “professional track” clauses.

I, however, would have to disagree because of the definition of “news medium” that is in the bill:

(3)  “News medium” means a newspaper, magazine or periodical, book publisher, news agency, wire service, radio or television station or network, cable, satellite, or other transmission system or carrier or channel, or a channel or
programming service for a station, network, system, or carrier, or an audio or audiovisual production company or Internet company or provider, or the parent, subsidiary, division, or affiliate of that entity, that disseminates news or information to the public by any means, including:
(A)  print;
(B)  television;
(C)  radio;
(D)  photographic;
(E)  mechanical;
(F)  electronic; and
(G)  other means, known or unknown, that are accessible to the public.

Unless you are a blogger with an incorporated company or incorporate your blog as a corporation, I don’t see this definition as offering any prima facia protection for bloggers.

So, where in the bill could it be that bloggers are protected?  I direct you back to the definition of “journalist:”

“Journalist” means a person who for financial gain, for a substantial portion of the person’s livelihood, or for subscription purposes gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider and includes…[emphasis mine]

And then to that all-important “communication service provider” language. You will recall that the bill defined communication service provider to include an information content provider, which is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

There is still the hurdle of “substantial portion of the person’s livelihood” clause that stands in the way of bloggers being covered. However, the “for subscription purposes” clause could (and that “or” there is very, very, very key), combined with all the remaining things I’ve mentioned, offer us protection. While the traditional meaning of “subscription” would mean “for a fee,” the bill does not specify that “subscription” must be tied to “for a fee.” In the modern internet world, “subscription” and fee are by no means synonomous, since you can “subscribe” to a blog through its fees, or “subscribe” to a blog if you are a member of the site to comment.

Of course, all of this is subject to court interpretation, if it were to pass. In my view, the “subscription” clause, the “substantial portion of livelihood” clause, and possibly the “professional track” clause  could help bloggers. Upon very close reading, though, the “professional track” clause doesn’t seem to help because of this part of the definition:

by obtaining or preparing information for dissemination by a news medium or an agent, assistant, employee, or supervisor of that person.

It seems as though it actually excludes writing and publication, and is geared toward “obtaining” and “preparing.”

Before leaving this subject, it is important to point out something else out:

Out of the hundreds of issues the legislature must deal with every year, this is not exactly an issue in the “Top 10.” It’s not CHIP, it’s not the General Appropriations Bill, it’s not public education or electric utility legislation or tuition re-regulation.

The media, of course, will follow the story relentlessly. Why? Because it’s legislation for “them.” The blogs will cover the legislation because we want it to cover “us.” While it is important legislation, it isn’t necessarily an issue that the average Texan is concerned about. Should the average Texan care? Sure, because we want a free press. But, for as much press as the issue will get, it isn’t as vital as things like fully funding CHIP.

Nonetheless, we follow it religiously.

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