Over the past eight months, bloggers have covered two political conventions; claimed credit for forcing the resignations of two prominent journalists (soon-to-be former CBS news anchor Dan Rather, ex-CNN news chief Eason Jordan); outed a conservative faker with a taste for gay porn credentialed to cover the White House; and risen from relative obscurity to media darling. They've done this while attracting impressive levels of web traffic (and advertising dollars) and conjuring up a cottage industry and community devoted largely to, well, themselves.
Now, with two reporters from established news organizations facing jail time for defying an order to divulge confidential sources to a federal grand jury, bloggers are clamoring for the same legal protection that journalists are accorded under the First Amendment.
But they won't get it. Besides, even if they did, it wouldn't be of much use.
Depending on whom you ask, bloggers are either "citizen journalists" who are democratizing media, or bloviating loudmouths posting ill-formed opinions on personal websites between trips to the fridge. They are victimizers when they assault the news organizations they love to hate, and victims when they are treated as "real media" by litigious companies out for blood. "Salivating morons," members of a "lynch mob" (Steve Lovelady, managing editor of CJR Daily), the "sons of Joseph McCarthy" hellbent on destroying careers (Bertrand Pecquerie in a Feb. 12 post on the Editors Weblog), or simply "citizens who want to know the truth" (BuzzMachine's Jeff Jarvis, guest on CNN's Reliable Sources with Howard Kurtz).
To the Electronic Frontier Foundation, bloggers are "online journalists" who should be treated as print reporters under the law, or a "pack of wolves hacking at their keyboards with no oversight, no editors and no accountability" (Mark Coffey, a blogger quoted in a recent New York Times article.) In the end, maybe irritable gossip zine Gawker has it right. Editors there have referred to blogs as the "medium beloved by 'citizen journalists' and '14-year-old girls' alike."
But should bloggers receive protection under the law as regular reporters? Should they be able to maintain the confidentiality of their sources and not be forced to testify before grand juries or at trial?
Sadly, no, because contrary to conventional wisdom, journalists don't have these protections. The press has been under assault from the legislative and judicial branches for the past 40 years. These constitutionally protected privileges have become essentially meaningless to reporters and, by extension, everyone else. Bloggers simply can't count on the law to protect them from the law.
Still, a useful first step would be to learn whether bloggers are covered by existing state statutes that protect journalists from having to cough up sources. The vast majority of states mark a clear line between professional journalists and everybody else. How do reporters qualify? They must be employed by news organizations -- or as bloggers refer to it, the dreaded MSM (mainstream media).
Alaska's statute protects reporters, defined as "person(s) engaged in, connected with, or employed on any newspaper, radio broadcasting station or television station, while engaged in a news gathering capacity." Arizona says a reporter is someone "engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper or radio or television station." Delaware protects any journalist, scholar, educator, polemicist or other individual who "at the time he or she obtained the information that is sought was earning his or her principal livelihood" as a reporter and "had spent at least 20 hours engaged in the practice of obtaining or preparing information for dissemination to the general public."
Although many bloggers spend more than 20 hours a week on their blogs, few earn a living from them. And fewer still blog for established media organizations. For them to receive protection on the state level would require the laws to be rewritten.
Except, perhaps, in Nebraska, which wants to ensure "the free flow of news and other information to the public," and may be the most blog-friendly of all: The state protects any "medium of communication" including, but not 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."
Of course, state laws only cover state grand juries. The federal realm is governed by different rules. While reporters have rarely ended up in jail for refusing to cooperate with subpoenas or testify before grand juries in the past, the law is clearly not on their side. According to a 1972 Supreme Court ruling in Branzburg v. Hayes, "the First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation."
Earlier this week, a three-judge federal court appeals panel upheld a ruling in which Judith Miller of The New York Times and Matthew Cooper of Time magazine were sentenced to up to 18 months in jail for refusing to disclose their sources to a grand jury investigating a leak that disclosed the identity of a CIA agent.
Most ominously for the blogosphere, Judge David B. Sentelle, in addressing reporters' privilege, asked if it protected "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 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 judge seems concerned that bloggers (in pajamas, no less) might be used by their sources.
Isn't this what Robert Novak, the first to out CIA operative Valerie Plame in a July 2003 syndicated column, has been accused of?
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Adam L. Penenberg is an assistant professor at New York University and the assistant director of the business and economic reporting program in the department of journalism.
