With privilege comes responsibility

In these days of blogs, where anyone can become a published citizen journalist, there is real concern that the shield laws, which protect journalists from revealing their confidential sources, could extend to anyone and everyone. If everyone had this privilege, the argument goes, the courts wouldn't be able to conduct business because no one could be compelled to testify.

In his LA Times column, David Shaw called bloggers "at best pseudo-journalists." Though it may be hard for some professional bloggers to admit, blogging is a much less serious affair than publishing and broadcasting. Though this may mean, as Shaw says, that bloggers are therefore not entitled to a reporters privilege, this distinction also has its benefits. Are bloggers prepared to accept the other consequences of being a full reporter? Libel claims, resulting in the loss of thousands and millions of dollars, could be fought and won against bloggers for the inaccurate and unedited content they create everyday.

Jack Shafer of slate.com argued in his column that a blogger is fully aware of the risks ("his house, his bank account, his car, and his Fiestaware collection") and is therefore even more likely to be careful than Shaw who is shielded by his corporate lawyers. But it is obviously unlikely that every "Tom, Dick and Matt" is aware of the legal ramifications of divulging trade secrets and reporting libelous material.

Ultimately, I believe the question of whether or not the reporter's privilege will extend to the professional or casual blogger will depend on the evolution of the blogosphere. Just as the modern press was shaped by the courts, so will blogs. After a few lawsuits, the wheat will be separated from the shaft. Professional journalists, who happen to be writing online instead of in print, will emerge to legitimize the medium. Legistlators, as Shafer so self-righteously points out, have already managed to distinguish between certain types of journalists, and another definition for bloggers is emminent.

The privilege could be delimited, for example, to those whose primary motivation for acquiring the information is to disseminate it to the public. This would include professional journalists and bloggers but would avoid the situation where everyone who happens to have a blog could exclude themselves from testifying. Considering the fragile nature of the First Amendment, it is incumbent upon the courts to create such a definition.


  1. I think another way this might change is on the part of the bloggers.

    I suspect that as more and more are taken to court, their behavior will change. This could come in any form. The risk of online reporting could become to great, and would over time slow. Or maybe they'll get organized, and create their own method of credibility and defense.

  2. Well said. I'll admit, I wasn't sure why people were so skittish about bloggers being taken to court. I thought it was a matter of principle, instead of an actual threat to the system. And I agree with you and Aaron, the courts always manage to flush out incoming institutions. Let's hope multiple bloggers are forced into bankrupty because they weren't aware of the risks of reporting.


  3. I meant "aren't forced into bankrupty".... Oops.


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