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Home > Reading Room > Freelancers beware of proposed federal shield law

SPJ Reading Room


Freelancers beware of proposed federal shield law

By Wendy Hoke

The Free Flow of Information Act of 2005 had its first hearing before the Senate Judiciary Committee on July 18, with senators on both sides of the aisle recognizing the importance of the watchdog function of the press.

But there are certain limits to what this proposed reporter privilege law affords and certainly no guarantees of its being signed into law by President Bush.

Given the recent tenor of disdain toward “independent journalists,” freelancers must take certain precautions to protect themselves as “covered persons” under the proposed legislation.

S.B. 1419 does not distinguish between print and electronic periodicals but rather defines as an entity anyone who “disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic or other means.”

Under Section 5C, the bill reads that covered persons are “an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.”

“In this definition, contactor would include what we typically think of as freelance journalist, provided there is a contract,” said Robert D. Lystad, SPJ’s legal counsel from Baker & Hostetler in Washington, D.C.

“The contract doesn’t necessarily have to be in writing, but clearly that’s the best evidence that a freelancer is working for a specific news organization,” he said.

Oral contracts and agreements via e-mail will be considered legitimate proof of work. However, absent a specific agreement, freelancers who report and write on spec likely will not be covered under the federal shield.

“If there is a concern,” Lystad said, “it’s mostly for fledgling journalists, those without a proven track record for publishing.”

For example, someone like a Vanessa Leggett, who spent 168 days in jail for failing to turn over her notes for a book project she was working on. Having never before been published, she likely would snot have been covered under a federal shield law.

“I think this is deliberately written this way because legislators are unlikely to support a bill where they call on someone to provide testimony and anyone can say, I’m a freelance journalist. I’m protected by the shield law,’ ” Lystad said.

Some bloggers fit that category; others engaged in the newsgathering and reporting function will be covered because the definitions include entities that publish in print or electronic form.

“I can certainly understand the arguments being made that all bloggers should be entitled to the privilege under the First Amendment, but the reality is that Congress would never allow that because it would essentially cover everyone, and that will never happen,” he said.

What frequently gets lost in the discussion about a federal shield law or any reporter’s privilege is that the goal is NOT to protect criminals or blatant criminal activity, nor is it to raise journalists above the law, it is simply to protect the public’s right to know what its government, business and others are doing.

“...The best example is whistleblowers. If they cannot be assured of at least some degree of protection from having their identity exposed, they are not going to report government abuse, mismanagement, fraud or criminal activity,” Lystad said.

The need for some sort of protection is clear. Within the past year, more than two dozen reporters have been subpoenaed or questioned about their confidential sources in cases before federal courts.

A case in point — in my backyard — is a story involving The Plain Dealer, the alternative weekly Scene and allegations of widespread corruption at Cleveland City Hall during the administration of former Mayor Michael R. White.

On June 30, The Plain Dealer Editor Doug Clifton penned a column explaining the chilling effects of reporters being compelled to testify to reveal confidential sources in the wake of the Judith Miller/Matthew Cooper incident.

He shared with readers that The Plain Dealer was withholding two stories of great importance to the community because they were based on illegally leaked documents, and the paper wasn’t prepared to have either the editor or the reporters sent to jail. Instead, the paper was working on corroborating the stories from other legitimate sources.

Clifton took a very public and national beating for his candor and eventually was scooped in the story by the alternative weekly.

But now, Assistant U.S. Attorney Mark D’Alessandro from Ohio's Southern District will oversee an investigation into who gave the reporters the sealed court documents.

Jail is a real possibility for Plain Dealer reporter Michael Tobin and Scene editor Pete Kotz.

Though he said it’s unclear whether the Bush Administration is comfortable with the revised version, which permits the government to compel testimony in case of “imminent and actual harm to national security,” a story reported by The Associated Press on July 27 quoted U.S. Attorney General Alberto Gonzales as saying the administration opposes a federal shield law.

Gonzales also told the AP that the government has been "very, very careful," issuing only a dozen subpoenas since 1991 seeking reporters’ confidential sources.

It is conceivable that additional compromises may have to be reached before a vote, according to Lystad. Unlike previous attempts to pass a federal law, the Free Flow of Information Act of 2005 has united media organizations including SPJ like never before.

“I think members of Congress are beginning to understand the problem of jailing journalists is much more prevalent than Judy Miller and Matt Cooper,” he said.

Wendy Hoke is a Cleveland-based writer who serves as co-chairperson of SPJ’s National Freelance Committee. She can be reached at
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