The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, December 06, 2004

Plame journos: if they go to jail, blame - the bloggers!

The most famous headline from the 1992 general election in the UK was It's the Sun wot won it - for John Major, that is.

Since November 2, even less modest claims have been made for the impact of the blogosphere on the late unpleasantness.

And now - the New York Sun is claiming that
one of the biggest obstacles the reporters face is America’s fastgrowing army of citizen Web loggers, or bloggers.

There is no Federal reporter's privilege: we are instead invited to pick the bones out of the Supreme Court's decision in Branzburg v Hayes - one of those frustrating decisions like Bakke with Justice Powell muddying the waters [1]. The practice has been a general reluctance from both prosecutors and hacks to test the issue.

And the bloggers?
“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.”

As WS Gilbert put it, If everybody's somebody, then no one's anybody. What sort of privilege is that?

Seems that, amongst the 19 states without a shield law, Texas stumbled on the definition of journalist. The journos themselves couldn't agree:
“The whole issue now is, who is a reporter?” said the president of the Texas Press Association,Wanda Cash. “I have great discomfort with that. Is Drudge a journalist? Probably. Is the disgruntled refinery worker who puts up a blog about Exxon a journalist? I don’t think so.The problem is, who decides?”

Opponents of a shield say it's tantamount to state licensing.

It's suggested that journos may actually benefit from being lumped in with the rest of us: protection of confidentiality might be any easier sell if hacks weren't pretending to a sort of aristocratic immunity, à la French Ancien Régime.

A three-judge panel of the DC Circuit hears the appeal of Judith Miller and Matthew Cooper on Wednesday.

  1. Nominally, the court found 5-4 against the existence of the privilege. Powell voted with the majority, but produced a concurrent opinion including the following gem:
    The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.
    In other words, Yes, We Have No Bananas. My piece of October 12 links various articles and earlier Plawg pieces on the subject.

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