From: <cef2103@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Mon, 14 Mar 2005 11:12:44 -0500

Paper 1: Journalists as Bloggers

Bloggers as Journalists

To what extent can bloggers be considered journalists? What, if
anything, makes them different from traditional journalists? Does a
reporter have to be institutional to be protected by reporter’s
privilege? Should bloggers be entitled to access to public events
and figures that is granted to institutional journalists? Bloggers
face two main problems that journalists of the institutional press
do not. The first is that they are not awarded the protection of
shield laws that keep them from having to disclose their sources
(hereinafter reporter’s privilege). Secondly, they cannot get
access to certain individuals, places, and information (hereinafter
referred to as access). Although journalism and the public would
theoretically benefit from a wide variety of journalists, the
unique characteristics of bloggers may make it impossible (and
maybe even undesirable) to successfully award them reporter’s
privilege and access at this point in time.

Bloggers who wish to claim the privileges granted to institutional
journalists claim that they must also be considered the press under
the First Amendment. Black’s law dictionary defines the press
traditionally, as “the news media; print and broadcast news
organizations collectively.” However, it goes on further to cite
Mills v. Alabama, which extended the definition from the
institutional media to “humble leaflets and circulars, [that] play
an important role in the discussion of public affairs.”[1]  This
suggests that the purpose of a communication may be the key to
determining whether it is protected or not. A teleological
examination of press function demonstrates that both reporter’s
privilege and access assist in the newsgathering process that
allows the press to fulfill its role as government watchdog and
facilitator of public discussion.

Reporter’s Privilege

The problem of whether bloggers should be entitled to reporter’s
privilege is simpler than the issue of whether they should be
granted access. In order to protect freedom of the press, many
states have enacted shield laws to protect reporters from having to
disclose their sources. Although designed to aid the press in
obtaining and disseminating information, these laws give a specific
right to protection to individual journalists. Bloggers could argue
that privilege does not apply to journalists as members of the
institutional press but that it applies to those individuals who
perform the functions of the press. This functionalist approach,
suggested also by Jack Balkin, a Yale professor and blogger,[2] 
seems most promising as it would allow anyone who investigates and
reports to be considered the press and therefore protected from
having to disclose sources.

Although this seems logical, it may not succeed in practice in the
current legal climate. Extending reporter’s privilege could
potentially make a huge new group of people journalists. If all of
these people are entitled to protection under shield laws, it may
make judges and even legislatures more reluctant to extend the
protection to anyone at all. Courts that have objected to shield
laws justify their decision by reasoning that the right to a fair
trial is more important than a journalist’s right to protect
sources. To them, this means that every person who has evidence be
obligated to give it. Reporter’s privilege is tolerable to them
(although it is becoming less so, especially where there is no
shield statute, i.e. in U.S. v. Miller[3]) because it is limited to
a small, easily definable group of people. Extending reporter’s
privilege to a large and nebulous new class of people could entail
restrictions on evidence that judges deem intolerable and could
result either in new limitations on protections awarded to
journalists or even in the elimination of reporter’s privilege
altogether. This is a situation that should be avoided at all costs
and suggests that extending reporter’s privilege to bloggers at this
point in time may not be desirable. However, the narrowing of the
gap between journalists of the institutional press and bloggers
will likely force a decision on this issue. Journalists, bloggers,
and lawyers must work to be sure that the importance of reporter’s
privilege is realized so that it does not disappear.

Access

Access is a completely different problem because there is no assured
right to access even to institutional journalists. Access is and has
always been at the discretion of the source, and credentials (even
for the institutional journalists) are usually conditioned on the
event getting a large quantity of favorable (albeit objectively
presented) coverage. Bloggers face the double obstacle of having
smaller audiences and of being more openly opinionated. Even blogs
that reach large groups of people, are independent, and perform
journalistic functions may not be considered media by the officials
in charge of credentialing.[4]

Possible solutions to this problem may create more issues than they
resolve. Even if there were a right of access for all press
organizations, the determination of who constitutes the press would
still present difficulties. A licensing scheme would put too much
power in the hands of the licensors. (Avoidance of government
licensing was an impetus for the freedom of the press clause in the
first place.) Therefore, solving the problem of access may not
require taking action at all.

Demand for Audience and Sources as Reporters

The reason for this is that it may resolve itself. As blogs become
more influential and powerful, the bloggers who write them may have
less trouble obtaining press credentials for certain events. For
example, the Democratic Convention in 2004 decided to offer some
credentials to bloggers, seeing them as a way of creating more
interest and support as well as reaching a larger quantity and
variety of people.[5] Also, access used to be restricted to
reporters who could use institutional connections to get to
sources. Now, many sources have blogs in which they tell their own
stories.[6]

Bloggers and Journalists are Different

Finally, the fact that bloggers do not get the same access as
established media may not even be a problem. Bloggers and
traditional journalists occupy separate niches in the media world
and both fulfill the function of the press in a different way.
While journalists of the institutional press may have more success
in established ways of gathering news, such as (for example)
interviewing government officials, bloggers may be better at
reporting stories that are just as important but would not
otherwise be told. Iran does not have a free press, but Iranian
blogs permitted people, especially women, to report on parts of
their culture that would not be discussed in the mainstream
press.[7]  More importantly, these blogs allowed discussions
between men and women that would not have otherwise happened in a
place where the traditional press had failed in its mission of
facilitating public discussion. The tsunami is another example of
how the institutional press and bloggers complement each other.
Bloggers generated many new perspectives and stories that were just
as important as the interviews established media did with government
leaders. Together, albeit in different ways, both help advance the
purposes of the press clause.
[1] 384 U.S. 214
[2]
http://www.nytimes.com/2005/03/07/technology/07blog.html?ex=1267851600&en=5eb5453aef28ffaa&ei=5090&partner=rssuserland
[3]http://news.findlaw.com/hdocs/docs/plame/inregjmiller21505opn.pdf
[4]I.e. the officials of the Press Gallery of the House of
Representatives, in
http://www.boston.com/news/local/articles/2004/05/10/blogs colliding with traditional media/.
However, their credentialing process structurally favors press that
is institutional in form.
[5]http://www.boston.com/news/local/articles/2004/05/10/blogs colliding with traditional media/
[6]For example, the owner of the Dallas Mavericks.
http://journalism.nyu.edu/pubzone/weblogs/pressthink/2005/01/15/berk pprd.html
[7]http://www.wired.com/news/culture/0%2C1284%2C58976%2C00.html.
Government pressure and the arrest of a prominent blogger have
since compelled many other bloggers to self-censor.


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