With the work in Washington D.C. to draft a new federal media shield law, the question of what exactly is blogging is being revisited.    And more importantly are Bloggers journalists or can they be considered members of the press?

The new legislation comes in response to many people’s concerns over the broad subpoena by the U.S. Justice Department signed off on by Attorney General Eric Holder allowing access to the phone records of Associated press reporters and editors and also a DOJ investigation into a Fox News reporter.  As you’ve doubtlessly heard most of your lives, reporters are allowed to protect their sources, which is why these subpoenas are particularly upsetting to many Americans as the goal of the subpoenas was to determine from where the reporters were receiving their classified information.

“Media Shield Laws” are seen by most people as pointless since as Americans we already have our First Amendment protections.  Senator Lindsey Graham, South Carolina, said “Who is a journalist is a question we need to ask ourselves.  Is any blogger out there saying anything – do they deserve First Amendment protections?  These are issues of our times.”

The last time Congress took up a media shield law was in 2009 when Clint Helder in Columbia Journalism Review asked, “Are journalists best defined by the act of reporting (what’s known as a functional definition), or by how they are employed (a status based definition)?”

I would argue that neither of those definitions truly embody the tradition of Freedom of the Press in this country.  A better examination and one we would highly recommend those in D.C. take a look at if they are really going to try and push a media shield law would be the words of Justice Byron White from the 1972 U.S. Supreme Court Case Branzburg v. Hayes, “The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper  or a mimeograph just as much as the large metropolitan publisher who utilizes the latest photocomposition methods.”

Justice White added (emphasis mine), “Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to the newspapers and periodicals. It necessarily embraces pamphlets and leaflets. … The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ ”

While Justice White did not specifically address Bloggers, as they did not exist at the time, it would appear clear that they would be included in “every sort of publication which affords a vehicle of information and opinion” and Senator Graham and Senator Schumer, of New York who he is working with, need to take into account the writings of Justice White.  Or even better just drop the entire discussion as do we really need more legislation when we already  have the First Amendment protecting us?

For further reading see the First Amendment Center’s website.