Winter Casey reports on the progress of a journalist shield law moving its way through Congress with bipartisan support, but notes a rather large hole in the protection.  The bill prevents judges, at least on the federal level, with charging reporters for contempt when they refuse to reveal confidential sources for their reporting.  But who gets covered?  On-line journalists may find an unpleasant surprise when they try to invoke it:

The bill, H.R. 985, would protect reporters from being compelled to reveal confidential sources even under subpoena. It currently has 40 cosponsors, including Reps. Mike Pence, R-Ind., John Conyers, D-Mich., and Bob Goodlatte, R-Va. An identical bill passed the House during the 110th Congress, but the Senate never considered it.

In order to protect journalists, however, someone first has to decide who qualifies — no easy task in the fast-evolving new media marketplace. Boucher’s office noted that 36 states and the District of Columbia already have statutes protecting reporters, but the laws use varying standards and some require journalists to work for a newspaper or a radio or television station.

“We have to be very careful of enshrining in legislation today a view of technology that doesn’t take into account that technology changes,” said David Ardia, director of the Citizen Media Law Project at the Berkman Center for Internet & Society at Harvard. “We are also faced with the situation today when journalism and journalism institutions are undergoing tremendous change, and the way we have defined who is a journalist” is changing as well, he added.

The Seattle Post-Intelligencer, for example, this week stopped printing a paper edition and is available only via the Web. President Obama, in his first news conference from the White House, took a question from a reporter for the Huffington Post, an online-only source of liberal-leaning news that also routinely publishes stories written by celebrities and notable politicos. Under some laws, reporters from neither publication would qualify for protection.

In the first place, this bill looks like a solution in search of a problem.  How often do reporters get locked up for contempt?  Very, very rarely.  The impetus for this legislation, the jailing of Judith Miller and the threatened detention of other high-profile reporters in the Plame leak investigation, came from an overzealous investigation prompted in large part by the loud indignation of the media … over leaks to reporters.  It was a breathtaking display of hypocrisy then, and the demand for this bill is almost as bad.

That said, the definition of journalist in the bill focuses on the wrong approach.  It takes a static view of what constitutes a journalist rather than the act itself.  Not everything that appears in the daily dead-tree drop is fact-based reporting; there are plenty of opinion-based articles as well.  However, the shield law protects all of that, as long as it appears in dead-tree form.  It doesn’t appear to protect on-line reporting because of the format, rather than the act of reporting.

For instance, just this week I have conducted the following original reporting, based on confidential sources:

According to this law, despite doing the same exact work as a newspaper reporter, I could remain vulnerable to a contempt charge for hiding my sources while the newspaper reporter would get a pass.  The same is true for our counterparts at HuffPo and the newly on-line-only Seattle PI.  That tells me that the bill focuses too much on titles and format and not at all on protecting the process it claims to serve.

If Congress wants to pass a shield law to protect the journalistic process, then it needs to make sure it protects the process and not just the existing, old-school journalistic establishment.