GIMME A BREAK - I'M A LAWYER AND FEMALE.
AND I CAN MAKE ALL THE POLITICALLY INCORRECT JOKES ABOUT MYSELF I WANT.
SO THERE.
NYAH.)
Another article on the issue of the "reporter's privilege" and blogging, via Instapundit and How Appealing:
"The crux of the reporters’ contention is that the public would be less well informed if journalists could not promise their sources confidentiality. However, the proliferation of blogs and bloggers could represent the Achilles’ heel in this approach. If Ms. Miller and Mr. Cooper are entitled to claim special treatment in the courts, so too could hundreds of thousands of Americans who use the Internet to post comments about their views on current events.
“They’ll say anybody with a modem and a computer is a ‘journalist,’” said a professor of media ethics and law at the University of Minnesota, Jane Kirtley. “No court is going to be comfortable with that sort of wholesale privilege.”
Ms. Miller’s attorney, Floyd Abrams, said he is bracing for questions from the court about the perils of granting legal protection to the burgeoning ranks of bloggers.
“There’s no doubt that’s the potentially dangerous aspect of it,” Mr. Abrams said in a telephone interview from his Manhattan office yesterday. “If everybody’s entitled to the privilege, nobody will get it.”
Mr. Abrams said he thinks many bloggers should be entitled to the same kind of protection he is seeking for his client and other traditional journalists. “I think a blogger who communicates with and tries to communicate with thousands of people is not less deserving than a journalist who may communicate with a smaller audience through a small-town newspaper,” the attorney said. “There should be protection so long as information was obtained for the purpose of dissemination to the public at large in some sort of analogous way to what ‘journalists’ do.”
However, Mr. Abrams said bloggers who confine their comments to matters of a personal nature should not enjoy any special privilege. “I don’t think one can sustain the position that everyone who has a Web site that they may put comments about their former girlfriends on is therefore a journalist,” he said."
Jim Lindgren has this commentary on the Volokh Conspiracy regarding the Independent's response to the NY Times Op-Ed by Eugene Volokh on this issue:
"I am not an expert on the First Amendment (as Eugene is). But I found the Independent's argument unpersuasive and questionable in a way that suggests why people need to look beyond mainstream sources such as the Independent to figure out the merits and scope of any First Amendment prvilege.
Terence Blacker in the Independent:
It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.
What some people seem to forget is that "the press" is only a metaphor for journalism. By giving freedom of the press as well as freedom of speech, the probable "intent" of the framers of the First Amendment and their probable "public meaning" was to recognize the freedom to publish without prior restraint and with broad (though not absolute) protection against later suit or punishment. If I'm right, then the "press" phrase of the First Amendment doesn't give more rights to journalists than to any other profession or sort of people who publish. It provides protection for whoever uses a publishing press, not a protection for a profession, like journalism. (To the extent that any states deviate from this basic First Amendment approach by privileging journalists only, they are acting unwisely in my opinion and contrary to the idea of the First Amendment.)
If we can now publish online for marginal costs that approach zero, then we all share in that freedom of the press (i.e., the freedom to publish). It is the technology that leads to egalitarianism, not the first amendment theory, which in my opinion has always protected publishers, at least non-obscene ones."
With the caveat that I absolutely bow to the expertise of both Lindgren and Volokh in First Amendment law - and probably any other law professor as I'm about as far from an expert as you can get - I'd have to take the position that to the extent any privilege is recognized, it should be afforded to "news blogs" at least as well as traditional media.
Advocates of a privilege cite thefirst amendment (passed in 1791), which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Of course, the government has always made laws abridging the freedom of speech in one form or another, for example the Sedition Act of 1798 which made it a crime to
"write, print, utter. . . . any false, scandalous and malicious writing or writings against the government of the United States . . . . with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them. or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States. . . .". We can't slander people, and we can't possess or sell a magazine full of child pornography, whether it contains articles or not.
These are all examples of flat prohibitions against certain types of speech, yet the evidentiary rule being discussed here doesn't involve any sort of prior restraint or direct impingement on what a person/reporter is allowed to say. Instead, it's an inference that the revealing of a confidential source would chill the freedom of the press. The Courts rightly recognize that the media fulfills an important societal watchdog function, and that some vital stories that could go unreported if sources were not able to speak freely without fear of reprisal.
The current hodgepodge of cases traces back to the analysis in the Branzburg case, in which the US Supreme Court decided whether three reporters were able to protect their sources: Branzburg, who did an article on "two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks," Pappas, who reported from inside the headquarters of a Black Panther cell; and Earl Caldwell of the New York Times, who was summoned before the grand jury "to testify and to bring with him notes and tape recordings of interviews given him for publication by officers and spokesmen of the Black Panther Party concerning the aims, purposes, and activities of that organization."
The Court found in favor of the government, indicating that the investigation of crime by the grand jury was a fundamental government role, and the rule calling for reporters to give testimony bore a reasonable relationship to the fundamantal government purpose of investigating crime. As the government could convincingly show a substantial relationship between the information sought and a subject of compelling State interest, could prove that the reporters could supply information on whether the illegal conduct had occurred, and had demonstrated that the infringement of protected First Amendment rights was no broader than necessary to achieve a permissible governmental purpose, the subpoenas were permissible. The Court noted that official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would be constitutionally questionable. A side note: the Court specifically rejected a proposed requirement that the State to prove that a crime had occurred and that the reporter possessed relevant information not available from other sources; pointing out that only the grand jury itself could make this determination.
But, as this review of the history of the privilege notes, Justice Powell wrote a concurrance that morphed into something close to a dissent:
"The majority opinion left the First Amendment door slightly ajar; Justice Powell flung it wide open. "As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated," he wrote. Consequently, a reporter who thinks "his testimony implicates confidential source relationships without a legitimate need of law enforcement" can move to quash the subpoena. In response, the judge must "balance the competing interests on their merits"รข€”the need for the testimony versus the reporter's "asserted claim to privilege." By the end of Justice Powell's short opinion, the majority's narrow, bad-faith exception covering harassment of the press had ballooned into a universal balancing test."
Since then, state and federal courts have taken a variety of positions, many upholding some limited reporter's privilege. It’s been held that any privilege against revealing the identity of the source also prohibits subpoenaing the documents or inanimate objects that could identify the source, including notes or memoranda (Playboy Enterprises, Inc. v Superior Court (1984, 2d Dist) 154 Cal App 3d 14, 201 Cal Rptr 207, 10 Media L R 1569). Courts have found no privilege against the compulsory disclosure of information not obtained by the reporter in confidence (Andrews v Andreoli (1977) 92 Misc 2d 410, 400 NYS2d 442). They have also held personal observations made by the reporter are not privileged (State v Turner (1996, Minn) 550 NW2d 622). In some cases the Courts find disclosure necessary to protect the right to a fair trial of an accused, and that overrides any privilege (Miller v. Superior Court, 21 Cal. 4th 883, 89 Cal. Rptr. 2d 834, 986 P.2d 170 (1999)). Like other privileges, it can be waived by disclosure of the information to a third party (State v Donovan (1943) 129 NJL 478, 30 A2d 421). It can also be constructively waived in slander cases where the reporter claims truth as a defense (Beecroft v Point Pleasant Printing & Publishing Co. (1964) 82 NJ Super 269, 197 A2d 416). Finally, where it's a civil action and the reporter is not a party, court's can balance whether the information could be obtained from other sources, whether it's relevant or material to the plaintiff's case, and whether the suit is frivolous or not, as in the Iowa case I could find: Winegard v Oxberger (1977, Iowa) 258 NW2d 847, cert den 436 US 905, 56 L Ed 2d 402, 98 S Ct 2234.
None of the rationales or factual scenarios in all this stuff holds any less true for a news blog than it does for a pool reporter at a major paper. The Branzburg opinion specifically states:
"Freedom of the press is a "fundamental personal right" which "is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. Griffin, 303 U.S. 444, 450 , 452 (1938). See also Mills [408 U.S. 665, 705] v. Alabama, 384 U.S. 214, 219 (1966); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury."I think history reinforces this point. The American media began as a mishmash of little presses: didn't Benjamin Franklin work for his brother's paper before going on to publish Poor Richard's Almanac? As population increased and mass printing technology improved, the ability of a single person with carbon paper or a mimeograph machine to widely disseminate ideas was rather limited. Television only increased the power of the mainstream media, with conglomerates dominating the airwaves. But with the internet, we've returned to the roots of American news. Idiots like me can publish on the net, and if the ideas are good enough, get linked by major blogs and spread my little ideas all over the known universe.
The same value in the free flow of information applies, whether it's virtual or on the printed page. The fact that a blogger could theoretically be anonymous him or herself could provide some groundwork for a distinction, the argument being that the blogger can hide their own identity and thus protect their sources'. But I'd argue that's not necessarily valid. First, no offense to the anonymous blogs out there, but I find some of the most credible blogs are authored by professors or professionals with substantial credentials, and effectively put their author's reputations on the line with each post. Second, there is no way anyone could know beforehand that a confidential source will arise, unless they intentionally go under cover looking for one. Otherwise, any type of reporter, blog or otherwise, will pull from experts of his or her acquaintance to react to a story as it unfolds. If you happen to be the lucky individual with the right friends, you've suddenly got a confidential source. So how's a blogger supposed to know that they have to keep their own identify protected? Or are we all supposed to do it by default?
If a federal rule is enacted, either legislatively or through a constitutional ruling, I think that a balancing test of some sort is appropriate: compelling need, not a frivolous case, no other viable source for the information, etc. I also feel it should be a limited privilege, as is the case with the attorney/client or doctor/patient privileges: if there is proof that someone is imminent danger from the source, or the source is essentially asking your aid to commit a crime, then the privilege should not hold. But I think it has to apply to publishing in any form, electronic or print. Glenn Reynolds has a bigger average readership than the Iowa City Press-Citizen, by a really freaking wide margin. No matter how many pajama cracks you make, he's a force in the news, as are several other major blogs. Can the argument seriously be sustained that they deserve less protection than an intern reporter at the PC?
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