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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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March 14, 2005

A Proper Press Shield Test: Publication or Intent to Publish, Period

Posted by Ernest Miller

There is has been a great deal of discussion regarding the Apple v. Does trade secrets case and whether or not bloggers or online journalists should be protected by press shield laws. IPTA Blog has helpfully put together a group of links with various commmentary (Blogging, journalism and the law: linkdump). Much of this debate has revolved around whether bloggers are journalists or to whom press shield laws should apply, should it be to people who work for established main stream media, should we measure whether the process of journalism was followed, yadda, yadda, yadda. I find that much of this debate misses the point.

Why do we want a press shield in the first place? The reason derives from the First Amendment. We want to encourage people to gather information and publicly disseminate it without unduly impacting legitimate law enforcement interests. So, how do we limit the press shield appropriately? Linda Berger suggests four possible means to do so in her article on press shield laws (Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication [PDF]). The four possible means are: favoring one kind of speaker, one kind of content, one medium of communication, or one type of process. Seems pretty reasonble to me.

Berger takes quite a bit of time persuasively arguing about the faults of the first three types of distinctions. If you favor one kind of speaker, you end up essentially creating some sort of licensing system for those who are "journalists" and everyone else who publishes to the world. If you favor one kind of content, you inevitably get into the business of deciding what is "news" and what is something other than "news," leading into a thicket of content-based decision-making that is anathema to free speech. If you favor one medium of communication, that just seems weird. Publish in a newspaper, okay, broadcast on television, not okay. I agree that all these means of limiting press shield laws are seriously flawed.

That leaves us with the type of process. Berger constructs quite the litmus test for journalistic processes:

  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by a Track Record of Gathering and Publicly Disseminating Usually Truthful Information?
  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by the Presence of Internal Mechanisms Designed to Verify and Evaluate Information Before It Is Disseminated?
  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by Publication of Information from Which Readers Can Judge the Degree of Independence from Both Inside and Outside Forces?
Sheesh. Do you really want judges and juries deciding such things? Do you really want The Nation having to explain its version of "journalistic truth" and "degree of independence" during a McCarthy era?

Why does all this truth, verification, evaluation yadda, yadda, yadda, even matter?

The "press" and journalism boils down to two things: gather information and publish it publicly. Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)? Does it really matter if you've never published before in your life, if this is the time you get the scoop. for whatever reason? If you happen to be in the right place at the right time, if you happen to have the specific expertise that will let you see something others miss, why in the world do we care that you've never published something before? Do we want to discourage people who might be a valuable addition to the marketplace of ideas simply because they aren't regular visitors to the marketplace? If people come across information valuable to the public sphere, don't we want them to bring it forward?

Do we really need mechanisms to evaluate truth before publication, if you happen to be the subject matter expert? This isn't libel, where the truth or falsity of a charge is specifically at issue. Even if you aren't a subject matter expert, why shouldn't it be okay to publish something with a caveat saying, "This may or may not be true, but I thought people should know." What harm has occured because of this that wouldn't occur with a fact-checking department (remember this ain't libel)?

Do we really need full disclosure of possible conflicts of interest? If someone publishes anonymously (more-or-less) people will likely take such publicatiobns with a greater grain of salt. Still, that doesn't mean that they aren't worthy of protection as gatherers and disseminators of information.

In the end, it seems to me, the only process worth protecting is gathering information and public distribution or the intent to publicly distribute said information. That is what the First Amendment wants to protect. Sure, we would prefer that information be verified and people have track records, but the First Amendment doesn't and shouldn't care. It is a relatively simple and brightline test. It would certainly protect mainstream journalists, as well as bloggers.

Would it be too broad? I doubt it. You can learn a lot simply by knowing who published the information in the first place. If that doesn't tell you much, chances are the person has probably been acting as a journalist for quite some time. Sources will also be less likely to provide information to people who might not adhere to journalistic ethics. If they adhere to journalistic ethics of protecting sources, even at some cost to themselves, they're probably journalists acting journalistically.

You've gathered information and you published it publicly. Congratulations. You've acted the way the First Amendment hopes you will. Press Shield laws should recognize this.

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