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.