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.