May 4, 2013

Blogger Issue Destroys a Shield

Hawaii and Wyoming don't have a whole lot in common, but they will soon be the only two states that do not recognize any sort of privilege for reporters to protect confidential sources. (Forty states have shield statutes, while courts in nine states recognize the privilege in some form.) Wyoming has never recognized a reporters' privilege, but Hawaii will lose its reporters privilege on June 30, when a shield law adopted in 2008 expires.

The Hawaii shield law is expiring because the two houses of the state legislature could not agree on terms of a renewal statute. The state senate, in particular, proposed a version which would have removed protection from bloggers and writers for free publications. (With the expiration of the statute, Hawaii law reverts to the prior common law, under which protection of confidential sources was uncertain.)

The same issue of application to bloggers derailed of an effort to pass a federal shield law in 2011. The question of whether and how shield laws apply to bloggers has been an issue in California, Florida, Illinois, Maryland, New Hampshire, New Jersey (twice: here and here) and Oregon. Court decisions on the issue have focused on the language of individual states' shield laws and whether the blogger in the case was acting as a journalist.

Many bloggers, Tweeters, and others who contribute to social media are fulfilling the same role as journalists for more traditional media -- informing those who access their sites about news and information about their communities and the world -- and should have the same protections.

And legislators should not portray them as bogeymen (and women) who cannot be "trusted" with a reporters' privilege. Of course there will be irresponsible bloggers, just as there are some irresponsible journalists in more traditional media. But these few should not be used as an excuse for not protecting those acting as journalists, including bloggers, from being protected from having to reveal confidential sources.