Buzz Marketing with Blogs: Bloggers and the D.C. Court of Appeals

Bloggers and the D.C. Court of Appeals

The D.C. Court of Appeals in the U.S. recently issued a decision (PDF) in the case of whether or not reporters should be required to disclose their sources to a grand jury. (news coverage, editorial)

Around page 30 of the decision, the court speculates on something of interest to bloggers: whether “freedom of the press” and perhaps status as a journalist should be given to bloggers, and if so, what that might mean. I quote:

The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it
necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

408 U.S. at 704. The Supreme Court went on to observe that “freedom of the press is a ‘fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’” Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect 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 not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? 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 state legislatures have dealt with this vexing question of entitlement to the privilege in a variety of ways. Some are quite restrictive.

Some interesting assumptions and ideas here:

That a blogger is someone “posting ... his best product to inform [his readers]” (in pyjamas, of course!)
That setting up a Web log could grant instant journalism shield status (and if Web publishing is publishing to the world, whose definition of journalist takes precedence? Where the writer is? Where the server is? Where the source is? Where the subject is? Where the reader is?)
That one (undesirable) alternative to blocking bloggers from enjoying “freedom of the press” may be to license journalists in some fashion.
That liberty of the “press” is the ultimately the right of “the lonely pamphleteer,” and is a “fundamental personal right.” To turn a phrase, the courts seem prone to decide that freedom of the press shouldn’t belong just to the companies that own one.

As a blogger, it’s nice to hear at least some speculation from the judicial branch on the possible treatment of blogs, though under U.S. law, if I remember correctly, off-topic musing in a decision doesn’t carry as much weight as discussion specifically applied to the case at hand.

This may, incidentally, be the first mention of “blogger,” “blog” and “web log” in a D.C. court opinion: (search here)

Source: First saw this on Poynter Online - E-Media Tidbits.

Posted by Susannah Gardner on 02/17 at 11:15 PM • Law and Ethics