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HB 1074 Fails to Recognize Bloggers as Journalists, Contrary to Standing Statute

In her State of the State Address, following up on one of her few campaign promises that I welcomed, Governor Kristi Noem exhorted the Legislature to pass a “commonsense reporter shield law, protecting the right to a free and independent press.” In his effort to comply with the Governor’s demand, Representative Jon Hansen (R-25/Dell Rapids) has written a decent bill… for the 20th century.

Hansen’s House Bill 1074 seeks to provide “a privilege for journalists and newscasters” to refuse to surrender their information or their sources to the courts, grand juries, the Legislature, or any public agency with the power to slap people with contempt charges.

Alas, Hansen pulled his definition of “journalist” and “newscaster” from 1975:

(1)    “Journalist,” any person who, for pay, is engaged in gathering, preparing, collecting, writing, editing, filming, taping, or photographing news for publication in or with a newspaper, magazine, news agency, press association, wire service, or other professional medium or agency that has as one of its principle functions the processing and researching of news intended for publication. The term includes any person who is an employee of, or who is otherwise affiliated for pay with, the medium or agency and any student enrolled at an accredited university, college, or technical school in this state who otherwise meets the requirements of this subdivision;

…(5) “Newscaster,” any person who, for pay, is engaged in analyzing, commenting on, or broadcasting news by radio or television. The term includes any student enrolled at an accredited university, college, or technical school in this state who meets all of the requirements of this subdivision;… [emphasis mine; HB 1074, excerpts from Section 1, as posted 2019.01.24].

Rep. Hansen loses points for using the wrong principle. In this case, to speak of main or primary functions of the journalist, we need to refer to principal functions.

Rep. Hansen loses more points for excluding online journalists from legal protection. HB 1074 would give KELO-TV talking head Don Jorgensen the right to keep secrets about the sources he talks to for the meager handful of slack stories that he steps out from behind the anchor desk to report, yet it would exclude bloggers—recognized as journalists by South Dakota Circuit Court Judge Foley in 2013—and others who gather, prepare, collect, write, edit, film, tape, photograph, videograph, analyze, comment on, and/or broadcast news every day but don’t happen to get a regular paycheck from anyone for any specific story or hours spent journalizing.

I commit journalism on a regular basis on this blog. At no point has my blogging secured a paycheck in any conventional form. But a variety of sponsors (visible in the right sidebar on your desktop; if you’re on a mobile screen, scroll down, and send those sponsors a note of appreciation!) purchased ads that supported my operation. A number of friends of journalism also clicked on my PayPal Blog Tip Jar or sent me checks by mail (sidebar or scroll down to join their ranks—thank you, friends!) to express appreciation for my efforts. Tell us, Rep. Hansen, does that count as doing journalism for pay?

My friend Toby Uecker blogged for me occasionally a few years ago. He did it for love, not a regular paycheck. Yet he surely committed journalism (and provided a lucid explanation of why blogging really is journalism, a definition HB 1074 supporters may wish to review).

What about Bart Pfankuch of South Dakota News Watch? He’s clearly a journalist, even though his primary organization is an independent entity with no newspaper of its own. Pfankuch writes stories that newspapers pick up, which assume pays the bills… but what if Pfankuch writes a story that no newspapers are willing to run? Does Pfankuch suddenly not become a journalist when we’re talking about the news gathering he did for that story? Or what if the Attorney General gets wind that Pfankuch is working on a big story about corruption in state government and he convenes a grand jury and subpoenas Pfankuch to surrender his sources before he’s written the final version and sold it to the newspapers. Is Pfankuch not a journalist in that case, simply because no newspaper has yet paid for that information?

House Bill 1074 contains some alarming language in Section 5:

Any information obtained in violation of section 2 of this Act is inadmissible in any action, proceeding, or hearing before the Legislature, any court, or any other agency or public body in the state [HB 1074].

In violation of Section 2? Section 2 deems privileged information obtained by a journalist in confidence when the journalist…:

(1)    Obtains or receives the information, with or without solicitation, in the course of gathering or obtaining news for publication in a newspaper, magazine, or for broadcast by a radio or television transmission station or network; and
(2)    Is employed by or otherwise associated in a new-gathering capacity with the newspaper, magazine, or radio or television transmission station or network [HB 1074].

I don’t think Hansen intends this result, but technically, as written, HB 1074 says that if I obtain or receive information without intent to publish that news in a newspaper or magazine or put it on TV or radio, or if I engage in journalism while not employed by or associated with a newspaper, magazine, radio station, TV station or over-the-air network, I am “violating” the law. It seems unwise to write even the suggestion of that possibility into law.

Instead of saddling the reporter shield law with his own outdated definition of journalism, Rep. Hansen should keep law consistent and use definition of journalism that’s already in statute, a definition he voted for in 2013:

(1) “Journalism,” the gathering, preparing, collecting, photographing, recording, streaming, broadcasting, writing, editing, reporting, or publishing of news or information that concerns matters of public interest for dissemination to the public, including on the internet;
(2) “News media,” personnel of a newspaper or other periodical issued at regular intervals, a news service, a radio station, a television station, or a television network, regardless of whether the news media is in print, electronic, or digital format;… [SDCL 13-1-57, enacted 2013].

Bernie Hunhoff, a journalist, prime-sponsored that definition in the House in 2013 SB 119 in the House. And that law makes clear that the definition of journalist does not depend on ink, airwaves, or pay. Representative Jon Hansen voted with Hunhoff for that bill on February 27, 2013. That law Hansen voted for just six years ago says bloggers are journalists.

As written, HB 1074 extends protections to corporations whose own financial interests are driving them to do less journalism and more fluff and advertising. One could argue that I dedicate a higher percentage of my blogging activity to real journalism than some of the advertising corporations whom HB 1074 would protect.

Governor Noem rightly seeks protection for the “free and independent press.” Just last year, the Legislature declared that strong journalism is vital to democracy. But to defend democracy and truth in the 21st century, we more than the corporate, paycheck, old-school media. It’s the 21st century. Journalists don’t have to have a printing press, a transmission tower, or a corporate employer. The courts say so. Current statute says so. Hansen’s reporter shield bill needs to say so.

43 Comments

  1. grudznick 2019-01-25 20:03

    This law bill intentionally leaves bloggers like us out. You can tell it was crafted to be a slap in Mr. PP’s face.

  2. South DaCola 2019-01-25 20:46

    Ironically I sometimes don’t even know who my sources are. I have gotten some pretty big tips from people who want to remain anon. Bruce emailed Cory Myers at the Argus about leaving out the internet, he didn’t seem to care. He said this;

    “Not how I read it at all. News agency, press association…other professional medium. For pay is a clear identifier.”

    So he thinks if you are getting paid, then it doesn’t have to have the internet identified in the bill.

    I responded and haven’t heard back by saying this;

    “Cory I get paid through direct advertisers and remote advertising such as Google. I also except donations. Getting ‘Paid’ either way shouldn’t matter. Some of the biggest news stories were broke on blogs, including the EC siding debacle and the Gant/Powers ethics issue. IMO a HS dropout could be considered journalist if they are providing the public information.”

    I am actually surprised that major news organizations that use the internet wouldn’t be opposed to this bill. I was told once that KELOLAND’s website gets a million hits a month. Could any news organization in the state be profitable if they dropped their website? I highly doubt it. In fact Myers was just bragging the other day that their online subscription is triple that of the daily dead tree version (or something close to those numbers). Could the Argus pay employees without that revenue?

    Where are all these ‘supposed’ professionals in the SD MSM? It would seem to me they would be protesting leaving out the internet.

  3. Debbo 2019-01-25 21:17

    Online news gatherers must be included. One of the best sources for Minnesota news is MinnPost. It only exists online, though the reporters and columnists are paid salaries.

    Other news sources are similar in that they are online only. Since that’s already in SD law, this new bill should reflect that.

  4. Kal Lis 2019-01-25 21:28

    I am going to be cynical here. This bill was written to protect KELO, the Argus Leader, the Rapid City Journal, and the other South Dakota’s traditional media powerhouses.

    Those outlets really don’t do news. They do puff pieces on incumbents.

    This bill is simply a politician taking care of his own and not caring that some people may choose a nontraditional news outlet as a way to expose corruption bring some important matter to light.

    As a side note, I am willing to bet that South Dakota’s whistle blower protections are also limited. It might be a good idea for an administration that claims it wants sunshine to strengthen those protections as well.

  5. David Newquist 2019-01-25 21:28

    Shield laws are a fairly recent occurrence. At the time I was a full time journalist, there was no such shield. If a source gave you a confidential tip that was true and accurate and you used it in a published report, the journalistic code was that you would go to jail rather than reveal the source. There was a caveat, however. You did not report the information unless it was verified by at least two independent sources. When a reporter received a confidential tip, the first task was to try to find a legitimate source that would verify the information for the record or to see if the information was documented somewhere. And publishing of such information was not an individual decision. The final decision on the use of such information was made by the editor, the news director, or whoever the top news executive was. Often it involved the review of the legal counsel.

    When the major media make unattributed reports, they will generally state how many people were interviewed regarding the information, thus offering assurances that the information had been checked out. The charge of fake news gains credibility from slovenly journalism and the deliberate fabrications and exaggerations of the supermarket tabloids and nighttime talk radio. Their lack of integrity and credibility taints the entire news industry. That’s why shield laws try to make a distinction between journalists who subscribe to the ethical procedures of their profession and those who are casual about the verification of facts.

  6. Donald Pay 2019-01-25 21:32

    In 1982 my ex and I started a newsletter that circulated to a small number of people. We concentrated on the nuclear waste issue for the first 2 years, then branched out into all sorts of issues. We regularly scooped the mainstream media on this issues through our own research and inside sources. We would funnel some information to newspaper journalists, because our little newsletter didn’t reach that many folks. We often received inside information from government and non-government sources, repackaged it so that it could not be identified, and put it out under the Technical Information Project. Our sources loved how we were able to launder information so they would keep their jobs, and they kept siphoning stuff our way.

    We weren’t normal journalists, I guess. We fancied ourselves as “guerilla researchers.” We laughed off any threats we received. We welcomed them.

    Once Sen. Gary Hanson got ticked off that I dumped on his committee a bunch of inside information that Janklow was trying to keep secret from the Legislature and the public. I won’t say from whom we got the info, but I had to pick it up at a backdoor of a state office building, take it to Klein’s where my three-year-old daughter pushed the green button to copy it and take the stuff back to the backdoor of the office building. We held that info for a few weeks and dumped it on Hanson’s committee right when it would do the most damage.

    I was ready to go to jail if Hanson had made good on his promise to make me divulge who gave me the information. He was so mad I suspect he would have jailed my daughter, too, for her criminality in pushing the green button on the copy machine.

  7. Debbo 2019-01-25 21:40

    I’m not surprised, Mr. Pay, that you have operated as a ninja journalist. Thank you.

  8. grudznick 2019-01-25 22:20

    Mr. Pay was a rogue fellow back in the day, and the machine crushed him down. The resulting bitterness drove him out-of-state, where he now resides and throws acorns from a distance at what he hates, blaming most things on conspiracy theories and money perceived to be made from radioactive particles and sloppy environmental practices.

    Do I have that right, Mr. Pay?

  9. John W 2019-01-25 23:03

    These folks always have a “issues” with problem identification and a stark willingness to think clearly and at length about unintended consequences.. They forget to ask the basic questions, what is the problem, what are all the potential solutions to the problem if it really is one, which solution has the least number of unintended consequences and actually solves the problem. Most of the time, if one thinks about the notion that something is a problem, it usually isn’t but problem creators need problems so they can fix them.

  10. Roger Cornelius 2019-01-25 23:35

    Today Trump associate Roger Stone was indicted and arrested. It infuriated Trump and he demanded to know how CNN got the scoop.
    As it turned out, CNN did some old fashion reporting, they had their eyes and ears on the Friday and with other Stone associates being questioned by the grand jury CNN guessed the next of the kings men to fall would be Stone, CNN went to Florida and waited for the F.B.I., and you know the rest.
    My point is this, Cory was doing some real in depth reporting and exposing what was happening with EB-5, his sources were sound and Cory was pretty accurate on his reporting.
    Cory is one of the best investigative reporters I have ever read and his blog, although it is mostly commentary, features major news stories.
    Bloggers need the same protections as other journalists, reporters, etc.
    Can this bill be brought up again while this legislature is in session?
    Also, are there any federal statutes that would protect bloggers as journalists?

  11. Cory Allen Heidelberger Post author | 2019-01-26 08:12

    Grudz, a slap in PP’s face? Why would the Legislature be more interested in slapping the GOP waterboy than slapping me? I just can’t believe I’m not the center of legislators’ cognitive universe. :-D

  12. Cory Allen Heidelberger Post author | 2019-01-26 08:21

    David, I always appreciate your experienced persepctive. It’s too bad this bill does not seek to make an ethical distinction. It only makes a commercial distinction, one which seems to uphold Kal Lis’s suspicion that HB 1074 is a favor to the commercial outlets who puff up the incumbents backing this bill.

    Suppose I posted and swore to uphold exactly the ethical standards David lays out—verifying sources seeking anonymity, hearing it from two sources before running it (that’s how I handled the Taylor/Haugaard story before the court documents went public), etc. Would that posted policy make me a journalist?

    South DaCola and I will have fun making our argument about what “for pay” means. We make money on ads—are we thus covered under HB 1074?

    Suppose I got a grant from the Knight Foundation or the Open Society Foundation to support independent local journalism. Would that make me a journalist under HB 1074’s definition?

    Suppose I print off a weekly summary of Dakota Free Press and sell those copies on the counter at Red Rooster for a quarter? Would that make me a journalist?

    Why not just stick with the definition of “journalism” already in statute? HB 1074 creates confusion by making some people simultaneously journalists and not journalists.

  13. Donald Pay 2019-01-26 08:27

    Grudz, You can see it that way if you want. I never felt ground down. I was on the school board when job opportunities in Wisconsin popped up. School board was very difficult to resign. I loved it. Yes, I was tired of starving, maybe ground down financially, but not otherwise.

  14. Cory Allen Heidelberger Post author | 2019-01-26 08:27

    Not just journalist, but ninja journalist—that’s the badge I want!

    Donald’s story makes clear that alternative journalists can do things that the mainstream media can not or will not. Alternative journalists don’t feel the same pressure to get cozy with big advertisers or powerful public officials. Our sympathies are far more frequently with the little guy, the office workers who know what’s going on, who know it’s wrong, but who know they’ll get whacked by the boss or an angry Senator Hanson or the Governor if they speak up. In that regard, the alternative press is essential at checking the power of government and corporatia.

  15. Cory Allen Heidelberger Post author | 2019-01-26 08:28

    Kal Lis mentions whistleblower laws, which reminds me that we should be asking why the government would ask for the sources of our information in the first place. The information has been published. The information is true. What does the source matter?

  16. South DaCola 2019-01-26 10:46

    The only thing I had to give up when I started selling Google ads was potty words in my posts, which was fine, because I really needed to stop that behavior anyway, and many of my readers appreciated it. Oh, and they made me take down my Betty Page painting images, LOL.

  17. David Newquist 2019-01-26 11:54

    I hasten to say that Cory’s Dakota Free Press shows a level of journalistic integrity that the legacy media of the state applies only occasionally. Most media was created to sell advertising, not news. Advertising considerations have priority. Consequently blogs can practice true journalism with more abandon than the commercial media. It is hard to exercise the tongue of articulation when it must be constantly applied to the advertisers’ rinktums.

    Another factor in South Dakota is the journalists who cultivate sources of news and tend to flaunt the fact that they are fed tidbits that their competitors do not have access to. Their sources feed them a daily ration of puff with the threat of cutting off their access if they venture into territory where the sources do not want them. This is the kind of relationship Trump tries to establish with the press and he calls them “enemies of the people” and purveyors of “fake news” when they disobey. Bill Janklow used this tactic with the media.

    That spectacle of pooch screwing we call a state legislature will occupy itself with regulations for women’s wombs, and pointless courses and slogans for our schools, and performing fellatio on Trump’s nasty little ego over his wall, but it will never get around to legislating matters that address democratic governance. Unless, of course, the press gets an urge to report the actual state of the state, which is why South Dakota government is so consistently reported by watchdog groups as being one of the most corrupt in the nation. The only sources we have that keep a focus on honesty and competence are a few blogs like the Dakota Free Press.

    As for laws affecting the press, we have many on the books that give state officials complete discretion over what matters of state business they choose to report to the public, we have no sunshine laws that require the eventual reporting of such business, or any freedom of information laws through which the public may gain access to what is going on. In the meantime, South Dakotans are receiving constant lessons in pooch screwing.

  18. happy camper 2019-01-26 11:55

    Cory is a propagandist nothing more nothing less. His free speech should be protected but he’s not a member of the press any more than Sibby or Kurtz and has no journalist standards.

  19. mike from iowa 2019-01-26 11:56

    Someone speaking for the iowa lege can’t seem to get her story straight and keep it that way. Sounds like Huckabee-Sanders. Thanks for the links, bcb.

  20. Cory Allen Heidelberger Post author | 2019-01-26 13:42

    South DaCola, you had to take down the Bettie Page paintings? That’s nuts! KELO-TV puts on worse content than Bettie Page, and they get to be “journalists”….

  21. Cory Allen Heidelberger Post author | 2019-01-26 13:44

    I am more than a propagandist… but if you want to make that argument, I’ll respond that everyone, including Don Jorgensen, is a propagandist. Every journalist makes choices about what to cover and what not to cover, thus creating inherent bias in every day’s news cycle by the absence of certain information.

  22. Roger Cornelius 2019-01-26 13:44

    Why would anyone that doesn’t believe that Cory is a journalist and believes that he is a propagandist bother read and comment on his blog?
    Most conservative blogs, i.e. Dakota War College, Sibby Online(does he even blog anymore?),The Right Side Blog,
    I don’t even bother with because they have no substance.
    Cory’s Dakota Free Press not only offers substance, it offers integrity.
    If you disagree with his commentary and substance don’t read his blog.

  23. Cory Allen Heidelberger Post author | 2019-01-26 13:46

    David’s comment is very important. The paid press is beholden to its payers. I am beholden to no one, not even long-time sponsors Stan Adelstein and the Sioux Falls Democratic Forum. (Grateful, yes. Beholden, no.)

  24. Debbo 2019-01-26 14:02

    Dr. Newquist’s comments about the advantages of ethical blogs such as DFP are very helpful and important.

    BTW, a search for the word “rinktum” produces very interesting and educational results. I did not know that about boys’ haircuts. 😀 Thanks, Doc.

  25. David Newquist 2019-01-26 14:09

    Debbo,
    I was indulging myself in a literary reference from William Faulkner. He uses the term when recording the dialect of some of his characters and it refers to an anatomical region quite a way below the hairline.

  26. Debbo 2019-01-26 14:21

    Oh. 😯 Okay. That’s not one I saw in the dialects reference. 😊

  27. Porter Lansing 2019-01-26 15:30

    “You know what I’ll do? I’ll skin your rinktum.” – The Sound and Fury

    Urban Dictionary – rinktum
    ~ An extra special solution or invention for a mechanical design situation.
    “The custom built carburetor for my racing motorcycle is a real rinktum.”

  28. grudznick 2019-01-27 08:48

    The courts have found that Mr. PP is the only blogger noted as a journalist.

  29. mike from iowa 2019-01-27 09:51

    and it refers to an anatomical region quite a way below the hairline.

    I’m guessing brain cavity if the reference was towards my idea of wingnuts.

  30. Jason 2019-01-28 12:44

    David Newquist wrote:

    I hasten to say that Cory’s Dakota Free Press shows a level of journalistic integrity that the legacy media of the state applies only occasionally.

    That’s hilarious.

    Cory’s journalistic integrity is on full display with him not retracting his false Covington story.

  31. mike from iowa 2019-01-28 13:35

    Boo freakin'[ hoo, Troll.

  32. Cory Allen Heidelberger Post author | 2019-01-28 23:48

    Jason, your mockery is baseless. I speak here with far more integrity and public accountability here than you. Whose full name goes on every comment?

  33. John Tsitrian 2019-01-29 05:41

    Bloggers are provocateurs, not journalists. Our credibility is self-created and self-sustained. It doesn’t need the stamps of institutional approval and recognition.

  34. Cory Allen Heidelberger Post author | 2019-01-29 07:23

    Every journalist is a provocateur. Every journalist provokes citizens to think about things they wouldn’t have known or thought about otherwise.

    I don’t need government to tell me I’m a journalist. But if the law is going to offer certain protections for journalists, I want those protections offered fairly to all journalists, including John Tsitrian and me.

  35. Porter Lansing 2019-01-29 10:22

    A federal court ruled that bloggers are journalists—at least when it comes to their First Amendment rights.
    The Ninth Circuit ruled as such on Friday in Obsidian Finance Group v. Crystal Cox, a complicated case first decided in 2011. The court found that even though someone might not write for the “institutional press,” they’re entitled to all the protections the Constitution grants journalists. – Jan 21, 2014

  36. Porter Lansing 2019-01-29 10:58

    Journalism is fluid. That’s why University of Colorado closed it’s journalism school in 2011, restructured to meet new guidelines and reopened in 2017.
    “Now more than ever, we need great journalists trained to provide fair, accurate, ethical reporting – who can also navigate constantly changing technologies and platforms. The new Department of Journalism in the CMCI is teaching students the skills they will need to be professional journalists today and in the years ahead.”
    https://denver.cbslocal.com/2017/05/01/journalism-university-
    colorado/

  37. Jason 2019-01-29 12:36

    Porter,

    That means Cory can be sued for libel much more easily.

    The Covington kids come to mind.

  38. Roger Cornelius 2019-01-29 12:58

    Covington kids proceed with your libel lawsuit, Cory is shaking in his boots.

  39. Porter Lansing 2019-01-29 12:59

    Nathan’s Phillip’s courage will be remembered forever. He stepped into the middle of a profane, racially charged exchange that symbolized the dark side of race relations in our country: it was the MAGA hat-wearing sons of southern, white plutocrats against a small group of strident, abysmally missguided African Americans, the Black Hebrew Israelites (if you need a comprehensive overview of the entire incident, ABC Nightline did a good one). Remarkably, a Native American, whose ancestors faced genocide at the hands of European immigrants to America, stepped into danger with a drum and ceremonial song to deliver peace. When confronted by both hostile parties, he kept his rhythm; he stayed until his work was done that day. He made good on the memory of Martin Luther King, whose “I Have a Dream” Speech was uttered at that same location 56 years ago. – Lakota Law Project

  40. mike from iowa 2019-01-29 13:09

    However, if you are able to identify the individual or groups harassing you, you may have the right to sue for personal injury damages. Online harassment can be incredibly damaging. Harassers may hack personal websites, post offensive comments on a person’s Facebook wall, or may reveal a person’s address, e-mail, or other sensitive information. This can be incredibly harmful and can result in real damages. If you have been harmed by online harassment, protect your rights. You may have the right to seek damages for your injuries.

    Listen up, Troll.

  41. Porter Lansing 2019-01-29 14:10

    MFi … You mean if I give out the names of grudzie, Jason, Ryan, Happy, OlSarge etc. I can get in trouble, legally? C’mon. Every item it took to discover their identities was available on the web, free of charge. You just have to listen to their clues and know where to look. I wouldn’t really turn it over to the Muslim Brotherhood, if they continue to slander the peaceful followers of Islam in SD.
    PS … It’s a slow day on DFP, so I’ve been on his Facebook page giving Ol Sarge a lesson on his misinterpretation of the Democratic Party’s past. Same BS that Nelson tries to float. Anything you’d like to say to him? ha ha ha As a fed worker (as well as is his wife) I believe they’re glad to be getting a paycheck again. Putin’s not been paying them, either.

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