Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel for ASNE. You can address your legal questions to him at Goldberg@fhhlaw.com, and he will answer them in a later column.

Q: Is there any legal distinction between the online writers at my paper and those who work for the print edition? Are the online reporters viewed as “bloggers” in the eyes of the law, or do they have the same protections as the print reporters?

A: This question could have been posed as: “Should those of us writing for this online-only edition of The American Editor have special concerns for our liberty?” The answer applicable to ASNE members: Functionally, there is no difference between print and online reporters. In fact, I can only think of two real-world situations where the status of a reporter has legal ramifications – and the practical effect in both situations is very limited.

The first situation was the topic of my last column. As I discussed in the summer edition of The American Editor, the immunity available under Section 230 of the Communications Decency Act for Internet content providers against defamation lawsuits has evolved to the point where the work of a freelancer may not result in liability for defamation, while the exact same content run in the print edition is deemed to have been published by the paper. Because most online reporters are actually paid staff, though, their work would still subject the paper to liability in defamation cases.

The second jumps into my head because of the recent high profile controversies surrounding the credentialing of reporters to cover sporting events. The NFL has imposed significant restrictions on the content that can be posted on media Web sites, limiting those sites to 45 seconds of footage of NFL employees, including players, coaches and team staff, that is taken at an NFL or team facility, requiring that content to be taken off the Web site within 24 hours and requiring that the content be devoid of accompanying advertising but mandating that it contain links back to NFL.com and relevant team Web sites.

We have also seen the NCAA eject a staff blogger for The Courier-Journal, Louisville, Ky., from one of its playoff baseball games for doing his job too well. He was reporting about the game in progress and providing updates to readers regarding the action that was occurring on the field.

In the credentialing realm, the distinction between print and online has generally proven to be no distinction at all. Credentialing entities such as the NCAA, NFL and NBA had generally forced newspapers with a strong Web presence to count online reporters and bloggers against the total number of credentials issued to the publication for events such as the Final Four or Super Bowl. Editors were forced to decide between available reporters to send to an event and whether to elevate print over online or vice versa. That is largely not the case anymore, as most leagues and organizations recognize that the print and online components serve different functions and can often be entirely separate entities, allowing each to obtain its own set of credentials.

The issue of print versus online has reared its head in two bills that are pending before Congress. Both are supported by ASNE as integral to the news gathering process. But while the definition of a “journalist” in each is being crafted and debated with an eye on the increasing number of online-only reporters, it is unlikely that an online reporter or staff blogger for a daily newspaper would fall on the wrong side of that line.

The first is the Free Flow of Information Act (HR 2102 and S 1267). This is the bill that has commonly been referred to as the federal shield law, because it would provide a reporter’s privilege against compelled testimony in federal court proceedings.

The bill as currently written allows anyone that is engaged in journalism to claim the privilege. This would include “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Many who oppose this bill, and even some who support it, use the old argument that “anyone with a computer is a journalist nowadays” and fear that anyone with a blog will try to invoke the privilege to avoid testifying in court. There is also the fear that key members of terrorist organizations will be able to stay out of court by creating or utilizing the public relations or “media” arms of their entities. Language has been discussed that would narrow this definition by limiting it to those who are engaged in journalism for “financial gain or livelihood” (which raises the very important question of whether student journalists qualify under the law, as they should). Less troubling for ASNE’s purposes is a possible exemption from the definition for anyone who is on the official terrorist watch list.

Similar questions surround a section of the Open Government Act of 2007 (S 1309) that seeks to provide much needed reforms to the Freedom of Information Act. Section 3 of that bill expands the definition of “news media” for purposes of receiving a fee waiver when requesting documents under FOIA.

Concerned that online reporters and serious bloggers who are not affiliated with an existing newspaper or broadcast radio or television station cannot qualify for this fee waiver, the drafters of this bill included language that requires an agency to take into account the requester’s prior publication history and the intent to disseminate to a reasonably broad audience when ruling on a fee waiver request.

Opponents of the bill fear that this language will allow anyone seeking information under the act – especially our nation’s enemies – to receive sensitive information for free. We have argued in response that the language in this bill is consistent with recent federal court rulings recognizing that bloggers and other less traditional media outlets are entitled to the same status as news media under the law. The CIA recently, and unilaterally, changed its interpretation of news media to mirror the court interpretations – and the CIA is likely the agency to be the most protective of its information, so other agencies should not be affected by the broader fee waiver language. Not to mention, if Hamas or al-Qaida wanted information through FOIA badly enough, they would probably simply pay the research and duplication costs under the law. Denial of a fee waiver would not deter them from that goal.

So each of these examples – the past history and pending legislation – raise interesting questions regarding the print/online distinction, but in the end, we seem to have reached the point under the law where, in most instances, your online reporters are now considered as mainstream as anyone else. *