Shield repealed

Whatever its other consequences for the Republic, the investigation that resulted in the perjury trial of I. Lewis "Scooter" Libby produced a memorable manifesto for a troubling but hard-to-refute position: that the dawn of the blogosphere has fatally complicated the argument for legal privileges for journalists.

The author of this essay isn't a journalist or a professor but a judge. In 2005, when the U.S. Court of Appeals for the District of Columbia Circuit ruled that journalists Judith Miller and Matt Cooper could be jailed for refusing to identify their sources in the Valerie Plame case, Circuit Judge David Sentelle, the author of the majority opinion, also wrote a separate opinion taking aim at the pretensions of the mainstream media.

"Are we then to create a privilege that protects only those reporters employed by Time Magazine, The New York Times and other media giants," Sentelle asked, "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?"

To paraphrase Roseanne Roseannadanna from Saturday Night Live, you ask a lot of questions, Judge Sentelle. And none of the answers is very comforting either to MSM veterans like me or to the boys and girls of the blogosphere.

Some legal back story: Although reporters routinely invoke the First Amendment in insisting on the right to protect their confidential sources from prying prosecutors, the Supreme Court disagrees.

In a still-binding 1972 case called Branzburg v. Hayes, Justice Byron White gave it to the press straight: "The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not."

The decision was 5-4, though Justice Lewis Powell, who signed White's opinion, also contributed a weaselly concurrence in which he offered the press this consolation prize: "The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources." This had led some hopeful journalists and media lawyers to view Branzburg as a "4-1-4" decision, but the wiggle room Powell seemed to offer hasn't been a great help.

State law is more congenial. Thirty-one states and the District of Columbia have laws that provide greater or lesser protection to confidential sources, and in some other states the privilege has been established by the courts. But in the vast majority of states it's the MSM that benefits from the privilege. The language of California's statute, now part of the state constitution, is illustrative. It protects a "publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed."

Recently a state appeals court extended the California shield law's protection to online news services as well, an innovation welcomed by The Times in an editorial endorsing a federal shield law. But that doesn't really answer the question left hanging by Sentelle, which is basically: Why stop there?

I'm familiar with all of the answers: One formula is to say that the reporter's privilege attaches to anyone in the business of journalism. But what does that mean? Must you be paid for your blogging to earn that protection? What if no news organization wants to buy, or even link to, the article that you put together with the aid of a confidential source? And if an uncompensated blogger is entitled to the privilege, why not the teenager down the street and his MySpace page?

The leading alternative to the "professional" template as a justification for a journalist's privilege is a distinction between reporters and opinion-mongers. But that doesn't work either—MSM editorial writers have the same privilege as their colleagues in the newsroom, while in the blogopshere (as on the op-ed page) reporting and commentary are often commingled. Robert Novak, after all, is an op-ed columnist. And the dirty secret about the First Amendment is that it was adopted at a time when newspapers didn't practice "objective" journalism.

Long before the blogosphere was born, legal deep thinkers massaged the question of whether the freedom of "the press" safeguarded by the First Amendment meant something more than freedom of speech for the press. The age of the blogger may have rendered that debate moot, because now everyone with a PC or a BlackBerry has a "press." Yet everyone can't have a journalist's privilege—or it's not a privilege.

Michael McGough is the Los Angeles Times' senior editorial writer.

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