The Senate’s media shield bill protects bloggers, and they should support it

[Commentary] The shield bill, which is called the “Free Flow of Information Act,” would create a new federal privilege for reporters to protect confidential sources.

Forty-nine states have long had laws like this on the books or in their case law. Some bloggers are alarmed by the bill recently moved forward by the Senate Judiciary Committee. Ironically, it would actually protect them. The bill does protect bloggers, which is why the Online News Association supports it. To figure out how the law would really work, take a look at the language of the definition itself — which includes two separate tests, and one safety valve.

Under the first test, a reporter can be covered if she works for any entity that publishes “news or information” by means of a variety of media. There is no “financial” test involved. Those media include any “news website, mobile application or other news or information service” as well as a “magazine or other periodical, whether in print, electronic, or other format,” which is language that courts have held to encompass blogs.

Under the second test, someone who doesn’t qualify under the first can be covered if she is a student journalist, someone who has significantly contributed to any medium covered under the first test, or someone who would have been covered under the first test for at least three months in the past five years — or, for real boomer second-generation journalists, at least a year in the past twenty years.

Finally, there’s a “safety valve.” The bill empowers anyone who fails either test to still be considered a covered journalist if “the judge determines that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.” In other words, a judge is empowered to do justice.

[Wimmer is general counsel for the Newspaper Association of America]