Court addresses bloggers' rights
In ruling against two reporters for refusing to name a source who revealed the identity of an undercover CIA agent, a federal appeals court addressed the question of whether bloggers are protected under reporters' privelege. Here are some of the judges' comments.
Judge David B. Sentelle of the Court of Appeals for the District of Columbia:
The statutes differ greatly as to the scope of the privilege, and as to the identity of persons entitled to the protection of the privilege.We have alluded in the majority opinion to the differing
decisions of courts as to civil, criminal, and grand jury
proceedings. There is also a more fundamental policy question
involved in the crafting of such a privilege.
The Supreme Court itself in Branzburg noted the difficult
and vexing nature of this question, observing that applying such
privilege would make it
necessary to define those categories of newsmen who
qualify for the privilege, a questionable procedure in light
of the traditional doctrine that liberty of the press is the
right of the lonely pamphleteer who uses carbon paper or a
mimeograph just as much as of the large metropolitan
publisher who utilizes the latest photocomposition methods.
408 U.S. at 704. The Supreme Court went on to observe that
“freedom of the press is a ‘fundamental personal right . . . 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.’” Id. (quoting Lovell v. Griffin, 304
U.S. 444, 450, 452 (1938)). Are we then to create a privilege
that protects only those reporters employed by Time Magazine,
the New York Times, and other media giants, or do we extend
that protection as well to the owner of a desktop printer
producing a weekly newsletter to inform his neighbors, lodge
brothers, co-religionists, or co-conspirators? Perhaps more to
the point today, does the privilege also protect the proprietor of
a web log: the stereotypical “blogger” sitting in his pajamas at
his personal computer posting on the World Wide Web his best
product to inform whoever happens to browse his way? If not,
why not? How could one draw a distinction consistent with the
court’s vision of a broadly granted personal right? If so, then
would it not be possible for a government official wishing to
engage in the sort of unlawful leaking under investigation in the
present controversy to call a trusted friend or a political ally,
advise him to set up a web log (which I understand takes about
three minutes) and then leak to him under a promise of
confidentiality the information which the law forbids the official
to disclose?
The state legislatures have dealt with this vexing question
of entitlement to the privilege in a variety of ways. Some are
quite restrictive. Alabama limits its protection to “person[s]
engaged in, connected with, or employed on any newspaper,
radio broadcasting station or television station, while engaged in
a newsgathering capacity.” ALA. CODE § 12-21-142. Alaska’s
statutes protect only the “reporter,” a category limited to
“person[s] regularly engaged in the business of collecting or
writing news for publication or presentation to the public,
through a news organization.” ALASKA STAT. § 09.25.300. The
statutory privilege in Arizona protects “a person engaged in
newspaper, radio, television or reportorial work, or connected
with or employed by a newspaper or radio or television station
. . . .” ARIZ. REV. STAT. § 12-2237. Arkansas’s legislature has
declared the privilege applicable to “any editor, reporter, or
other writer for any newspaper, periodical, or radio station, or
publisher of any newspaper or periodical, or manager or owner
of any radio station . . . .” ARK. CODE ANN. § 16-85-510.
Delaware is perhaps the most specific, protecting a “reporter,”
which
means any journalist, scholar, educator, polemicist, or other
individual who either: (a) At the time he or she obtained the
information that is sought was earning his or her principal
livelihood by, or in each of the preceding 3 weeks or 4 of
the preceding 8 weeks had spent at least 20 hours engaged
in the practice of, obtaining or preparing information for
dissemination with the aid of facilities for the mass
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reproduction of words, sounds, or images in a form
available to the general public; or (b) Obtained the
information that is sought while serving in the capacity of
an agent, assistant, employee, or supervisor of an individual
who qualifies as a reporter under subparagraph a.
DEL. CODE ANN. tit. 10 § 4320. Presumably, states such as
these would provide the privilege only to the “established”
press.
Others are quite inclusive. The Nebraska legislature, for
example, has declared:
(1) That the policy of the State of Nebraska is to insure the
free flow of news and other information to the public, and
that those who gather, write, or edit information for the
public or disseminate information to the public may
perform these vital functions only in a free and unfettered
atmosphere; (2) That such persons shall not be inhibited,
directly or indirectly, by governmental restraint or sanction
imposed by governmental process, but rather that they shall
be encouraged to gather, write, edit, or disseminate news or
other information vigorously so that the public may be fully
informed.
NEB. REV. STAT. § 20-144. To that end, it protects any “medium
of communication” which term “shall include, but not be limited
to, any newspaper, magazine, other periodical, book, pamphlet,
news service, wire service, news or feature syndicate, broadcast
station or network, or cable television system.” Id. at § 20-
145(2) (emphasis added).
In defining the persons protected by that privilege,
Nebraska tells us that “Person shall mean any individual,
partnership, limited liability company, corporation, association,
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or other legal entity existing under or authorized by the law of
the United States, any state or possession of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, or
any foreign country.” Id. at 20-145(7). Presumably, then,
Nebraska, perhaps more in keeping with the spirit of the recent
revolutionaries who gave us the First Amendment, protects the
pamphleteer at the rented printer, and the blogger at the PC, as
well as the giant corporation with its New York publishing
house.
The variety of legislative choices among the states only
serves to heighten the concern expressed by the majority in
Branzburg. See 408 U.S. at 704. This concern is reinforced by
examination of the Jaffee decision, upon which appellants rely.
In Jaffee, the Supreme Court extended a federal privilege “to
confidential communications made to licensed social workers in
the course of psychotherapy.” 518 U.S. at 15. There is little
definitional problem with the application of this privilege. The
court need only ask: Does this “social worker” have a license?
If the answer is “yes,” then the privilege applies; if it’s “no,” the
privilege does not. If the courts extend the privilege only to a
defined group of reporters, are we in danger of creating a
“licensed” or “established” press? If we do so, have we run
afoul of the breadth of the freedom of the press, that
“fundamental personal right” for which the Court in Branzburg
expressed its concern? 408 U.S. at 704. Conversely, if we
extend that privilege to the easily created blog, or the ill-defined
pamphleteer, have we defeated legitimate investigative ends of
grand juries in cases like the leak of intelligence involved in the
present investigation?
The full ruling can be read here
Feb 18, 2005 | E-MAIL | SAVE | PRINT | PERMALINK | DISCUSS(0)
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