Journalists' Rights Tracker

Whatever its other consequences for the Republic, the investigation that resulted in the perjury trial of I. Lewis "Scooter" Libby produced a memorable manifesto for a troubling but hard-to-refute position: that the dawn of the blogosphere has fatally complicated the argument for legal privileges for journalists. [...]

Recently a state appeals court extended the California shield law's protection to online news services as well, an innovation welcomed by The Times in an editorial endorsing a federal shield law. But that doesn't really answer the question left hanging by Sentelle, which is basically: Why stop there?

I'm familiar with all of the answers: One formula is to say that the reporter's privilege attaches to anyone in the business of journalism. But what does that mean? Must you be paid for your blogging to earn that protection? What if no news organization wants to buy, or even link to, the article that you put together with the aid of a confidential source? And if an uncompensated blogger is entitled to the privilege, why not the teenager down the street and his MySpace page?

The leading alternative to the "professional" template as a justification for a journalist's privilege is a distinction between reporters and opinion-mongers. But that doesn't work either -- MSM editorial writers have the same privilege as their colleagues in the newsroom, while in the blogopshere (as on the op-ed page) reporting and commentary are often commingled. Robert Novak, after all, is an op-ed columnist. And the dirty secret about the First Amendment is that it was adopted at a time when newspapers didn't practice "objective" journalism.

Long before the blogosphere was born, legal deep thinkers massaged the question of whether the freedom of "the press" safeguarded by the First Amendment meant something more than freedom of speech for the press. The age of the blogger may have rendered that debate moot, because now everyone with a PC or a BlackBerry has a "press." Yet everyone can't have a journalist's privilege -- or it's not a privilege.