Last week Utah's Supreme Court approved a new rule which will provide "news reporters" with broad protections against having to disclose information obtained during the news-gathering process. Before the Court's action, 33 states and the District of Columbia had enacted statutory shield laws extending similar protections to at least some journalists, while other states had done so through judicial decisions.
Utah, however, had no comparable constitutional or statutory rule and the state's judiciary had developed no clear guidelines about whether and under what circumstances journalists were entitled to such "privileges."
The Supreme Court received more than 50 public comments on the proposed rule before its enactment. Many were thoughtful arguments for and against, but few gave much attention to one of the central questions raised by the rule: Who should it cover?
The text of the rule states that its protections may be invoked by both news reporters and their sources, and defines a "news reporter" to include a "publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public."
But what is a "similar person"? Does the reference to "primary purpose" refer to the specific news gathering in question, or impose a requirement that those relying on the privilege have disseminating news to the public as their primary vocation?
Figuring out who is covered by the rule is a vital question because journalism is undergoing a dramatic transformation. Not long ago, the boundaries between journalists and the rest of us seemed relatively clear: Those who worked for established news organizations were journalists, while everyone else was not. Today, the lines distinguishing "professional" journalists from other people who disseminate information, ideas and opinions to a wide audience have been blurred by forces both inside and outside the media itself.
This transformation has important implications and presents new challenges. One such challenge is that we must figure out how to treat non-professionals engaged in journalistic endeavors compared with professional journalists and representatives of institutional media organizations.
"Freedom of the press" conferred by the U.S. Constitution's First Amendment is a right and a privilege that belongs to all of us, not just those who work for established news organizations. The allocation of news-gathering and similar privileges ought to be based on the activity in which a person is engaged, rather than who the person works for, whether the person is paid, or the views that are expressed.
The century that preceded the emergence of the Web appears to have hardened an artificial distinction between professional journalists and everyone else. Yet after an extended detour during which the means of mass communication effectively rested in the hands of the few, technological developments, with the Web at its foundation, are unwinding that process and democratizing communications as a whole, and journalism in particular.
Today, people outside of traditional media organizations (including many bloggers) play a significant role in breaking, analyzing and distributing news. And this seems certain to continue as more and more people take to the Web to share information and ideas.
The new Utah Supreme Court rule seems to acknowledge the transformation underway by employing broad (yet vague) language to define a "news reporter." Apparently this was purposeful. Comments prepared by the rule's drafters observe it "incorporates a relative broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many 'lone pamphleteers' still functioning, they may have modern-day counterparts on the Internet."
Thankfully, the sponsors of the rule seem to have embraced a view of journalism as an endeavor which can be undertaken by any of us - even those who do not work for established news organizations. But the rule might have been written more clearly, to eliminate any suggestion that the reference to "primary purpose" in the definition of news reporter limits protections to those engaged in journalism as a profession.
We must now hope the ambiguity in the new rule does not lead the courts to embrace a narrow view of what qualifies as journalistic activity worthy of protection.
* SCOTT GANT is an attorney and partner in the Washington, D.C. office of Boies, Schiller & Flexner.