Background

First Amendment Protections for Journalists

The U.S. Supreme Court has refused to recognize a First Amendment privilege for journalists.  In the leading case on reporter's privilege, Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court stated its concern that "[a]lmost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury."  In the majority opinion, Justice White also declared that:

We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination.  The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order.  Sooner or later, it would be necessary to define those categories of [reporters] who qualified 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.

Federal and State Protections for Journalists

Without First Amendment or federal statutory protections, journalists are protected only by state law.

Many states have enacted reporter’s privilege laws while other states have interpreted their own constitutions to give some protection to reporters.  While some states provide an absolute privilege for a reporter’s sources in all proceedings, more commonly state privileges are qualified.

Go to The Reporters Committee for Freedom of the Press.  Spend some time on the page for Montana and California (since the following cases occur in these states) and acquaint yourself with the privileges and protections journalists enjoy in each.  Specifically look at who is covered by these protections.

Recent Cases

Doty v. Molnar

Read the following story on Doty v. Molnar where a court found a state shield law for journalists protected a newspaper from being required to release the identities of anonymous online commenters on their website.  The eventual order did not address the issue of journalistic privilege for anonymous online commenters.

Case summary

Apple v. Does

Read the following stories and case excerpt on Apple v. Does where a court found that bloggers have to same right to protect confidential sources as conventional reporters do.  The court refuses to provide a determinative test to distinguish between "legitimate" and "illegitimate" news gathering and dissemination.  In determining whether a blogger was a journalist or not, the court questioned the relevancy of the medium used to transmit the news and whether the reporter is acting within a profit-driven model.

Background

Case summary

Full Case (Optional, the most relevant section is pp. 35-49)

In Re Grand Jury Subpoena (Josh Wolf)

Read this summary of the Josh Wolf case.  How is this case different than Doty or Apple?

Case summary

Contempt Order

Release Order

Controversy

Are bloggers serious sources of information anyways?

The Drudge Report, run by Matt Drudge, broke the Monica Lewinsky story.

Josh Marshall founded Talking Points Memo, which won the prestigious Polk Award in 2007 for its coverage of the U.S. Attorney Scandal.  It is the first, and so far only, blog to win the award.

Who is "covered"?

Should bloggers be considered journalists and afforded the privileges and protections associated with such designation? If bloggers are considered journalists, would the journalist’s privilege essentially be extended to everyone?  In that case, how can the journalist’s privilege be protected from becoming irrelevant?  A number of academics, journalists and policy groups, who have varying views on the issue, have weighed in on the debate.  Read the following articles.

            Mary-Rose Papandrea

            Citizen Journalism and the Reporter Privilege

            Michael Skube

            Blogs – All the noise that fits

            EFF

            Legal Guide For Bloggers

            Anne Flanagan

            Blogging: A Journal Need Not A Journalist Make (Optional)

Proposed Legislation

A proposed federal Reporter’s Shield law was recently approved in the House of Representatives, but efforts to approve it in the Senate have so far failed.  (See, e.g., Vote on Journalist Shield Stalled, Washington Post, July 31, 2008).

Free Flow of Information Act 2007, H.R. 2102

Skim the proposed federal Reporter’s Shield law that stalled in the Senate this summer.  Read Section 4, Subsection 2 defining "Covered Persons."

Full Bill Text

Read the following articles on the proposed bill.

How politicians weakened a legal shield for bloggers

Bloggers should be allowed to join the journalist party

Questions

Do you think bloggers are distinguishable from conventional journalists?  Should all bloggers be considered journalists?  If that is the case, who would not get journalist privileges?  If not, what criteria should a court consider in distinguishing between a blogger who should be protected by the journalist’s privilege and someone with "an opinion, a modem, and a bathrobe" who should not be protected?

Consider how there is editorial oversight provided by mainstream media outlets as a safeguard for journalistic integrity and accuracy.  How important is this safeguard in considering the inclusion of bloggers within the journalist’s privilege?