Apr 092013

I found myself blogging about journalist shield law at my personal blog today. As explained in that post, an experience as the editor of the high school paper has made newsman’s privilege a topic near and dear to my heart. So I thought I would resurrect a post I wrote a few years ago on the now-defunct blog I kept as a law student about how newsman’s privilege interacts with blogging as food for thought here. Originally written and edited in 2006/2007, with a few more edits for clarity now.

At a blogging colloquium at Harvard Law School [note: in April 2006] Eugene Volokh gave a presentation on the free speech protections that might be available for blogging, with the important (and, in my opinion, eminently reasonable) suggestion that free speech protections should not be medium-specific. In other words, if these protections would be available to you if you’d put your thoughts on paper, they should be available if you’d put them on a blog.

Where I commented was on his analysis of how the newsman’s privilege might specifically apply to blogs. Many seem to think this is a big thorny question since there are so many bloggers and thus so many people who may claim to be journalists. Personally I think if blogging gives us more journalists that’s a good thing, but the fear is that because the newsman’s privilege can keep information from being made available to certain judicial proceedings, if there are too many journalists because of blogging, too much information could be kept from the courts.

I don’t share this fear. I think the overall policy approach that has been struck in the past – that it’s better to allow the privilege to keep information from the courts because, were it not for the privilege, often none of the information would have come to light at all – can scale to accommodate blogging. In other words, while more information might be kept from the courts, because of blogging more information will reach the courts in the first place. The relative percentage of information kept from the courts should be about the same as it was under the traditional media model.

Thus the inquiry for whether and when there should be a valid privilege available for bloggers should be the same as it has been for traditional media, which is consistent with Volokh’s overall thesis. Where I differed from him was in suggesting that instead of evaluating whether the reach of a particular blogger justified his entitlement to the privilege, the analysis should instead hinge on the blogger’s functional intent. Thus as long as the blogger was engaging in a traditional newsgathering activity – gathering information for the purpose of disseminating it more widely – he shouldn’t be penalized for having a smaller readership by being deprived of the privilege. Important free speech rights should not be allocated based on popularity.* A lonely pamphleteer or a lonely blogger may essentially be crying into the wind with their information, but if their intention was to have their information be heard, that is what should earn them the privilege, regardless of if it is heard or how well. Furthermore, due to the nature of the Internet and its habit of never forgetting anything published on it, the lonely blogger’s post is likely to have a greater and more lasting effect than the lonely pamphleteer, whose First Amendment rights are more traditionally recognized but whose pages will wrinkle and rot over time. The true effect of a blog post may not become apparent for days, weeks, or even years after it is first posted. So if we were to assign journalist’s privilege based on readership, at the very least there would be a significant problem of metrics: at what point should we measure the audience?

Ultimately it’s the effect of the blogging that is most pivotal. Did it bring something important to light that otherwise would have gone undiscovered? Was privilege necessary in order to do it? To the extent that the answer to these questions is yes, the same reasons for allowing the privilege in the traditional media context should apply in the blogging context as well. Where things get messy, however, is in navigating the different types of privileges that might apply. Would it be an absolute privilege, or a qualified one? Would it be state or federal in origin? Volokh’s analysis mostly hung on these questions, as he parsed the relative state statutes to see what type of privilege they might allow. The problem is that if a blogger does not know whether or not he has a privilege at the time he does his reporting, it is hard to make the argument that he should be allowed to assert it later because he can’t make the “but for” argument – that “but for” the privilege he wouldn’t have discovered the information, since as far as he knew he didn’t have it. It would be contrary to the policy of offering any sort of newsman’s privilege if it could be retroactively asserted since its existence had offered no utility to the gathering of the information in the first place.

But the fact of the matter is that even for traditional media the newsman’s privilege has been a very murky area of law. Yet it appears that journalists have largely been resolving that ambiguity in favor of the belief they do, in fact, nearly always have the privilege. Ultimately that belief should carry weight, because even if in fact the privilege hadn’t clearly been available, if relying on the plausible belief that they would have had its protection had been essential to their newsgathering, then the important policy values behind the privilege would be vindicated. For bloggers, then, the same should also be true, and this is another reason why gauging their intention is so important. Just like with a traditional reporter, if the blogger intended to investigate and reveal the results widely, and if believing they had the newsman’s privilege was necessary in order to enable them to do so, then the results of their investigation should similarly be protected by it.

* I wrote in another old post that there often arises the notion that a blogger has no claim to protections like shield laws unless he is somehow associated with “The Media.” In other words, you can have no claim to press protections unless someone else owns your press. But such a view is silly and undermines the policy values for having these protections in the first place. If we, even inadvertently, start forcing bloggers into the corporate bosom for this “protection” we may very well eliminate the benefit of independent media that the blogging revolution has brought. We need to make sure that these independent voices can stand protected on their own. In fact, arguably protecting them may be even more valuable to our democracy than the more over-consolidated mainstream press currently more clearly protected.

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