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Media Privileges for Bloggers -- Two Victories Over the Last Several Months:

Two weeks ago, the California Court of Appeal held that bloggers were generally entitled to the journalist's privilege under California law, just as mainstream media writers are. Few people mentioned that six months before that, the Federal Elections Commission also held that bloggers were entitled to the media exemption from most federal campaign spending regulations, just as mainstream media organizations are. Since two incidents are officially A Trend — not such a facetious assertion when it comes to law, where courts and other legal institutions take even nonbinding precedents seriously — it might be helpful to make a few points about the two items taken together.

1. Extraconstitutional speech protections. Since Reno v. ACLU (1997), it has been clear that the First Amendment covers Internet speakers as much as newspapers and other print media. What's more, the First Amendment has long covered nonprofessional speakers, such as street-corner leafletters.

The question now isn't whether bloggers are entitled to First Amendment protections; they are. Rather, it's whether bloggers are entitled to additional protections, beyond what the First Amendment requires. The First Amendment either secures no journalist's privilege, or a relatively limited one. (The matter isn't squarely settled in the courts.) But many states do provide a journalist's privilege, often a broad one.

The First Amendment lets the government restrict election-related speech by corporations; but election laws generally provide an exemption for media corporations. The First Amendment allows libel law. But many states let certain publications limit their libel liability by promptly publishing a retraction. The question is whether these statutory protections cover bloggers as well as traditional media.

2. A lot depends on the words of the statutes. Because we're dealing with statutory protections (and, in the case of the California journalist's privilege, a detailed state constitutional protections), rather than with judge-made rules developed under the First Amendment, the words of the particular statute matter a lot. For instance, if a statute covers "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication," that clearly covers bloggers, who are publishing their works. ("Publication" isn't limited to print publication.) On the other extreme, if a statute limits itself to publications that have "a paid circulation," it's hard to fit bloggers within that.

Both the FEC decision and the California Court of Appeal decision involved provisions — which are quite common — that cover any "newspaper, magazine, or other periodical publication." The FEC decision concluded that blogs should be covered because they are online equivalents of newspapers, magazines, and periodicals. The California Court of Appeal decision held that blogs should be covered because they are themselves "periodical publication[s]," which are literally covered by the terms of the California journalist's privilege; it also suggested that blogs might be magazines.

These decisions are likely to influence other courts to likewise read "newspaper, magazine, or other periodical publication" provisions to cover blogs. But the matter might be different if the relevant statute is expressly limited, whether to publications that have a paid circulations or to newspapers, to the exclusion even of traditional media such as magazines.

3. Yet much depends on whether courts find online media valuable. So I stressed the importance of the provision's wording; but there's also more to it than wording. Many provisions are ambiguous; "periodical" itself might be read as not covering blogs, and whether blogs are the online equivalent of magazines is a judgment call.

When a statute is unclear, the courts have room to make policy judgments — in this case, a judgment about whether periodicals are worthy, and deserving of the extraconstitutional speech protections, or whether they should be relegated to the same status as books, personal letters, leaflets, and other media that the statutes don't cover. (Remember that while the First Amendment may protect all those media, without leaving it to courts to decide which are worthy and which aren't, we're talking here about statutory protections that go beyond what the First Amendment requires.)

The FEC decision and the California Court of Appeal case both point that blogs really are important sources of information — I would say that they're similar to traditional magazines, in that they focus on often opinionated news analysis — and the California Court of Appeal decision expressly rejects various arguments that blogs should be seen as somehow less worthy. Those are likely to be influential precedents for other courts and agencies.

4. Medium-specific privileges are probably constitutional. Finally, note that, if a statute doesn't cover blogs — for instance, because it's limited to publications with a paid general circulation, or it's limited to newspapers — there's probably no constitutional objection to this. (The matter might be different if the dividing line turns on the viewpoint of the speech, or even the content, though that's not completely clear.)

Remember that in these cases the legislature is offering extra protection beyond what the First Amendment requires. In the process, the legislature is sacrificing some government interests that would otherwise justify burdens on speech or newsgathering (for instance, the interest in gathering more evidence for court proceedings, or the interest in compensating victims of constitutionally unprotected libel). Most court decisions that have considered such medium-specific laws take the view that this sort of discrimination is a legitimate way for the legislature to try to get the most (constitutionally unmandated) extra speech protection while at the same time making the least sacrifice of the countervailing government interests.

One case in point, by the way, is an important statute that provides medium-specific privileges to online speakers — including many bloggers — that are not offered to newspapers: 47 U.S.C. § 230, which immunizes online service and content providers from liability for material that others post to their sites. That's what keeps me from being liable for what commenters post, as well as keeping AOL from being liable for what its users post.

Newspapers don't get this protection; for instance, they're potentially liable for defamation in letters to the editor. Even bookstores might theoretically be held liable for defamatory and otherwise constitutionally unprotected tortious speech in books that they distribute, so long as they've been put on notice that the book is likely to be legally actionable. Not so with bloggers and with service providers, who are statutorily immune.

Whether or not this different treatment is ethically and pragmatically sound -- one pragmatic problem is the difficulty of drawing lines between, for instance, newspapers and magazines, or among WashingtonPost.com, Slate.com, InstaPundit.com, and Volokh.com -- it's generally seen as constitutional. Likewise, laws that give preferences to paper media and not online media, or professional media and not amateur media, are probably constitutional as well (with the possible exception of speaker-based exemptions from campaign finance law, which probably have to be justified under strict scrutiny, and which will often fail such scrutiny).

* * *

In any case, those are just a few thoughts about this important topic — I hope to soon finish a law review article on the subject, which should discuss all this in much more detail.

Public_Defender (mail):
Journalists (including bloggers) who want an evidentiary privilege should be subject to the same regulation that pretty much every other profession with a privelege gets. As a lawyer, if I act unethically and/or abuse claims of attorney-client privilege, I can lose my license to practice law. Same with doctors. Clergy traditionally faced punishment by their religious organization.

But journalists, especially bloggers, have far fewer checks on abuse.

I propose a journalist license. You could practice journalism without it (the First Amendment requires that), but you wouldn't be entitled to claim the journalist privilege if you didn't have the license. If you violated a code of ethics, your license could be suspended or revoked.
6.7.2006 8:15am
Public_Defender (mail):
I used the term "profession" loosely above. Because journalism lacks an enforceable code of ethics (especially if you include bloggers), it is not truly a profession. It is a craft, a trade, an art, and, in the case of many bloggers, a hobby. But journalism is not a profession.

If journalists want the privileges of professional standing, they should accept the governmental checks on the abuse of those privileges.
6.7.2006 8:40am
Tracy Johnson (www):
I wonder if bloggers will now be subject to McCain-Feingold restrictions?
6.7.2006 10:40am
Worm of Oblivion (mail):
If there is a concern about equality under the First Amendment that underlies the debate about bloggers' entitlement to privilege protection(though maybe, for some, there is not), requiring a state license to trigger that protection is infinitely more problematic than the situation we have now.

Further, the point of the privilege isn't necessarily to foster an elite class of professional journalists, but to nurture a relationship that, but for a reasonably reliable promise of confidentiality, isn't likely to yield information in which the public has a substantial interest. It is not the journalist's right to keep secrets, but the public's right to be informed that is at stake.

Besides, in many cases, the "unprofessional" blogosphere does a much better job than "traditional" media in sniffing out half-truths and misrepresentations. The blogosphere is very good at poking holes in stories that are out there---whether first reported online or in the mainstream press---via its nearly infinite network of comment posters and bloggers. While there are no written standards of conduct, bloggers have incentive to avoid incurring the community's displeasure: both because it feels bad to be excoriated online, and because a reputation for bad information is a sure-fire way to lose eyeballs in a medium where traffic is everything.
6.7.2006 11:16am
Adam (mail):
Tracy, they've already decided that, and the answer is, really, no. Long version. Short version.

It's funny that Prof. Volokh is working on this article, because I'm doing something similar for the local legal process, also involving a recent Section 230 case.
6.7.2006 12:33pm
Eugene Volokh (www):
Public Defender: "Clergy traditionally faced punishment by their religious organization." But of course there's no legal requirement of such punishment; I take it that different religious organizations have different understandings of abuse; and self-employed ministers (whether leaders of big religious groups or just small evangelists) would be much like self-employed bloggers for these purposes. Likewise, the spousal confidential communications privilege involves no punishment for "acting unethically and/or abus[ing] claims" (except insofar as perjury in support of a claim is punishable as perjury, and conspiracies with the confidential source / spouse are punishable if discovered, which would also apply to a journalist's privilege).

So it seems to me that the analogy is rather imperfect; what's more, it seems to me that you'd need to better define what's an "unethical" or "abusive" claim of a privilege.

I should say that I do think that the journalist's privilege, like many but not all other privileges, should not apply if the confidential communication was part of the source's attempt to commit a crime or tort, or to magnify the harm of the crime or tort. So if a source illegally leaks information, the journalist ought not be entitled to claim privilege; but if a witness confidentially but legally reports on a crime that he observed, the journalist ought to be entitled to conceal the witness's identity. In any event, though, whether this exception is implemented or not, I think that amateur or online journalists should generally have the same privilege as professional or offline ones.
6.7.2006 4:42pm
Public_Defender (mail):
I admit that when it comes to the clergy privilege, the analogy is imperfect, but clergy can and do lose their position for bad behavior.

Likewise, you can lose your spousal privilege if you abuse your position as spouse enough that you end up divorced (depending on how the privilege is defined, you can lose the privilege for all past communications, or only communications after the divorce). By contrast, there is not entrance or exit barrier for bloggers claiming the journalists privilege.

When I discussed "acting unethically or abusing the privilege," I did not mean that should be the extent of the rule. That's the principle to be applied. Doctors and lawyers can create an enforceable set of ethical rules. Why can't journalists?

The possibilities for abuse of an unfettered blogger's privilege are strong. Anyone can set up a blog, periodically report information, and be immune from providing information they receive. All a person need do to avoid testifying as a witness in any case would be to set up a blog and periodically report some of the information he learns.

Let's say my company is in contentious litigation. If I have a blog, I can claim statements my co-workers make to me "in confidence" are protected by journalistic privilege, even if I only rarely write about them.

That flies in the face of the general doctrine that courts are entitled to every man's evidence.

What I didn't see in your post (but did see in your NYTimes op/ed) is a discussion of the downside of privileges. Justice Scalia explained that well in his dissent in Jaffee v. Redmond, 518 U.S. 1, 18-9 (1996):


It has not mentioned the purchase price: occasional injustice. That is the cost of every rule which excludes reliable and probative evidence--or at least every one categorical enough to achieve its announced policy objective. . . . For the rule proposed here, the victim is more likely to be some individual who is prevented from proving a valid claim--or (worse still) prevented from establishing a valid defense. The latter is particularly unpalatable for those who love justice, because it causes the courts of law not merely to let stand a wrong, but to become themselves the instruments of wrong.


Think about Wen Ho Lee. A journalists' privilege would have prevented him from getting redress against the government officials who leaked false information against him. Or Richard Jewel, who was viciously and falsely portrayed in the press as the Olympic Bomber. As I remember, the journalists privilege in that case allowed the government to get away with smearing him in the press.

You say you would not apply the privilege to "illegal" leaks. How would you define that? Federal statute? Federal constitutional claims? State statutes? Local ordinances? Administrative regulations? Professional ethical rules? Departmental policies? Court orders? Tort law? Case law? Company policy?

I also think that any journalists privilege should be denied for false (and possibly merely misleading) information. That would greatly help the Wen Ho Lee's and Richard Jewel's defend themselves against smears from law enforcement. It would also give leakers an incentive to be scrupulous about the truth.

Finally, courts, not journalists, must be the final arbiters of whether the privilege applies. Journalists like Judith Miller want to have the final call. But if there's a dispute over whether information my client gave me is privileged, the judge gets to decide. Further, the court can often order in camera inspections of allegedly privileged documents and/or information. I doubt many journalists would stand for that, but it's part of the system.
6.7.2006 5:58pm
Public_Defender (mail):
The problem with the privilege and exceptions as outlined in the NYT op/ed piece is that when it comes to government leaks, you would protect undeserving government employees while failing to protect those who need protection.

As shown in the Wen Ho Lee, Richard Jewel and Valerie Plame cases, government officials can wield the journalists' privilege as a weapon against private citizens (or lower lever government employees). What public good does it serve to permit the Vice President of the United States to cower behind the journalists' privilege instead of making his attack publicly? Why shouldn't the innocent suspects of FBI agents who leak false or misleading information have the right to find out who did the damage?

By contrast, the kind of leaks that are valuable are frequently illegal—disclosing illegal behavior by intelligence officials, for example.

So, your proposed privilege protects communications that should be unprotected, and leaves unprotected communications that should be protected.
6.8.2006 8:32am