More on Shield Laws: Will Congress Pass the Free Flow of Information Act – And Will This Hurt Bloggers?


More on bloggers and the extent to which legal protections provided to traditional journalists will be extended to them:  right now, there is a bill moving through the House of Representatives that seeks to extend establishing journalistic protections in the law to only those writers who write "for a substantial portion of [their] livelihood or for substantial financial gain."

This might cover some non-traditional journalists.  It’s not going to cover lots of other bloggers who are crusaders or whistleblowers or other bloggers who are collectively being labeled “citizen journalists.”

New Jersey has ruled that its shield law can cover these citizen journalists.  So has California. Will the federal shield law be deemed to be less welcoming to these activist bloggers?

From the bill’s summary description: 

Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.

Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.

Requires the content of compelled testimony or documents to be limited and narrowly tailored.

Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.

Exempts certain criminal or tortious conduct.

Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.

It’s entitled The Free Flow of Information Act of 2011.

You can track it here.