Bloggers at the bar

Bloggers at the bar

: Heather Green at Business Week says that if the Times/Time source case goes before the Supreme Court, it could affect bloggers because attorney Floyd Abrams, representing the reporters, said on TV recently:

I think a blogger ought to be protected also. It seems to me that the purpose of this privilege is to protect the people who play a function in American life. It’s not to protect reporters as such. It’s to protect people who gather information and disseminate it on a widespread basis to the public.

Journalists are citizens and citizens are journalists.

  • Ethan

    From a general legal perspective, the journalist’s privelege extends to those who work with the intent of disseminating information to the public (“news”). The law can force any said disseminator to reveal sources when that source is essential to the matter at hand. So, bloggers are conceivably protected, but like all other journalists, there are limits.
    Perhaps there’s already been a case concerning confidentiality of sources and the blogosphere? Anyone? I’ll try to look into it.

  • http://punditdrome.com Scott Ferguson

    Journalists should not be a protected class of people in the eyes of the government. Any rights they have should be rights everyone has.

  • Ethan

    Well, any citizen who intends to and succeeds to disseminate information to the public is, in fact, given the “rights” of a journalist–at least one hopes, and there’s a credible case.
    I hope you’re not calling for the abolition of journalistic privilege altogether; because if such privilege is abolished, investigative journalism will be over. Immediately.

  • Andy Freeman

    The 1st amendment doesn’t mention folks in a profession. It mentions folks using a tool.
    Freedom of the press is for those who have one, and MSM isn’t the only group that does these days.
    However, MSM does continue to be one of the biggest supporters of speech and press restrictions.

  • http://punditdrome.com Scott Ferguson

    Ethan, what privileges of journalists are you referring to, and why shouldn’t mere mortals have them also?

  • Ethan

    Scott,
    Again, anyone can qualify–that’s what I’m arguing now (both on this blog and in my professional life). The qualification is that entities claiming the privilege must intend to disseminate information.
    Now, what privilege is it exactly? Basically, it’s the ability to shield sources and supporting documents from subpoena. Journalists are not required to disclose of confidential sources in legal proceedings unless the source and/or the information he/she has access to, is essential to the matter at hand.
    If everyone received this privilege regardless of their intent to disseminate to the public, our court system would be even more ineffective than it is now, because the power to subpoena would be emasculated. If no one had this privilege, serious investigate journalism would cease to exist because of legal considerations.

  • Andy Freeman

    > Journalists are not required to disclose of confidential sources in legal proceedings unless the source and/or the information he/she has access to, is essential to the matter at hand.
    As Reynolds and/or Volokh points out, this privilege isn’t a consequence of the 1st amendment. It’s a consequence of lobbying.
    > If everyone received this privilege regardless of their intent to disseminate to the public, our court system would be even more ineffective than it is now, because the power to subpoena would be emasculated.
    I’ll bite – why should govt have a right to information that is NOT “essential to the matter at hand”?
    > If no one had this privilege, serious investigate journalism would cease to exist because of legal considerations.
    Since “investigative” journalism is little more than score-settling by folks who have lost their gruntle, that’s not a particularly compelling argument.

  • Ethan

    > Journalists are not required to disclose of confidential sources in legal proceedings unless the source and/or the information he/she has access to, is essential to the matter at hand.
    “As Reynolds and/or Volokh points out, this privilege isn’t a consequence of the 1st amendment. It’s a consequence of lobbying.”
    That doesn’t change the result.
    > If everyone received this privilege regardless of their intent to disseminate to the public, our court system would be even more ineffective than it is now, because the power to subpoena would be emasculated.
    “I’ll bite – why should govt have a right to information that is NOT “essential to the matter at hand”?”
    It’s not just government–most importantly, it’s your fellow citizens. If they can’t subpoena for information, our justice system falls apart. You might be against that, but you better have a pretty strong argument.
    > If no one had this privilege, serious investigate journalism would cease to exist because of legal considerations.
    “Since “investigative” journalism is little more than score-settling by folks who have lost their gruntle, that’s not a particularly compelling argument.”
    Clearly not all investigative journalism is as you describe it. Besides, I prefaced my statement by saying “serious” investigative journalism, which neatly precludes your line of argument. Any good journalist worth his or her salt would vigorously oppose a journalism that is nothing more than score-settling.

  • Andy Freeman

    >> I’ll bite – why should govt have a right to information that is NOT “essential to the matter at hand”?”
    >It’s not just government–most importantly, it’s your fellow citizens. If they can’t subpoena for information, our justice system falls apart. You might be against that, but you better have a pretty strong argument.
    Sorry, but the right to subpoena for information that is NOT essential is not important for our justice system. In fact, fishing expeditions are a threat to our legal system.
    > Clearly not all investigative journalism is as you describe it.
    Feel free to cite concrete counter-examples AND show that the right to protect not-essential information is a decisive factor in them.
    Or, are we just going with argument by assertion?

  • Ethan

    >> I’ll bite – why should govt have a right to information that is NOT “essential to the matter at hand”?”
    >It’s not just government–most importantly, it’s your fellow citizens. If they can’t subpoena for information, our justice system falls apart. You might be against that, but you better have a pretty strong argument.
    “Sorry, but the right to subpoena for information that is NOT essential is not important for our justice system. In fact, fishing expeditions are a threat to our legal system.”
    That’s why there are Motions to Quash. I’m also unclear as to what sort of legal background you would have that would grant you the authority to make such an argument–are you a lawyer? A law professor? Or just a dittohead?
    > Clearly not all investigative journalism is as you describe it.
    “Feel free to cite concrete counter-examples AND show that the right to protect not-essential information is a decisive factor in them.
    Or, are we just going with argument by assertion?”
    Sure. Watergate. Easy but true. If you think that investigation was nothing more than score-settling, you can go right ahead and take your seat with the rest of the right-wing loony bin. If not, you lose.

  • Dexter Westbrook

    Investigative journalism wouldn’t stop with the elimination of a “reporter’s privilege” to refuse to answer a subpoena.
    What would happen is this — a reporter would have to decide, does this anonymous source have information so compelling that the reporter is willing to be jailed for contempt to protect him/her?
    That’s a high threshold for using an anonymous source. And that’s how it should be.
    If a reporter promises someone anonymity, the promise should be kept because of integrity — you make a promise, you keep it. Don’t hide behind some ginned-up privilege.

  • EverKarl

    Do I enjoy living in a country where the government gets to decide who gets preferential privileges of the press? It reminds me of what King George used to do before we booted his ass out of here. But I guess some people think licensure of the press has a nifty “back to the future” feel to it.

  • Ethan

    The privilege does not grant anyone the power to “refuse” to answer a subpoena; it provides judges the reason to approve of a Motion to Quash a subpoena. NO refusal involved.
    And it’s silly to say that all reporters should be willing to accept jail time to proect sources. Surely there are good reporters with families who earn meager incomes and, if faced with jail time, would have to tell.
    Calls to abolish the journalist’s privilege–at least as they are on this page–are simply not grounded in the letter of the law.
    And it’s not “the government” who decides who gets the privilege. Judges, who work through case history and legislation, make the ruling.
    If you don’t know what you’re talking about, it’s probably best to keep quiet, rather than crib Glenn Reynolds.

  • Andy Freeman

    >> Sorry, but the right to subpoena for information that is NOT essential is not important for our justice system.
    > That’s why there are Motions to Quash.
    Under Ethan’s favored system, said motions are to be denied if the person with the not-essential information is not a journalist yet to be granted if they are.
    > I’m also unclear as to what sort of legal background you would have that would grant you the authority to make such an argument–are you a lawyer? A law professor? Or just a dittohead?
    What’s a dittohead? However, it was nice of Ethan to offer ad aominem and, I suspect, an insult. Thanks, but I don’t swing that way.
    > Watergate. Easy but true.
    Bzzt – as recent events have shown, false. And, even before DT came out for the money, WG didn’t actually do anything good. (If a Dem had Nixon’s policy record, they’d be praising him as the second coming of FDR.)
    And, it’s ancient history.

  • Andy Freeman

    > Calls to abolish the journalist’s privilege–at least as they are on this page–are simply not grounded in the letter of the law.
    Bzzt – wrong again. We’re talking about the shield laws. They’re creations of legislatures; they were passed because reporters were losing their motions to squash. These laws can be repealed. If said laws were repealed, said reporters would start losing their motions again.
    BTW – Watergate predates many/most of the shield laws, so even if you believe that it’s a good example, it didn’t depend on shield laws.

  • http://www.bloggingthenews.info dabilou

    Freedom of speech isn’t only available for journalists, but for all citizens lambda too. The first court rule in Belgium about that subject has it just confirmed.
    A bloger, unhappy of the laptop he bought, has just been released free for all the charges. He bloged a lot about his case, used the logo and name of the company on his blog, revealed security failures, …
    The court said that freedom of speech is a right (even in Belgium) and that blogers may worried about a firm without been sued for diffamation.
    There’s more about and an interview (skyplex) with the bloger’s lawyer on my blog (sorry, only in french)

  • Ethan

    >> Sorry, but the right to subpoena for information that is NOT essential is not important for our justice system.
    > That’s why there are Motions to Quash.
    “Under Ethan’s favored system, said motions are to be denied if the person with the not-essential information is not a journalist yet to be granted if they are.”
    Before launching into criticism, you should go back and read what I actually wrote. My whole point is that anyone–not simply the old MSM!–can and should be afforded the journalists’ privilege. This isn’t my ‘favored system;’ this is a reasoned reading of the law.
    > I’m also unclear as to what sort of legal background you would have that would grant you the authority to make such an argument–are you a lawyer? A law professor? Or just a dittohead?
    “What’s a dittohead? However, it was nice of Ethan to offer ad aominem and, I suspect, an insult. Thanks, but I don’t swing that way.”
    Dittohead=Limbaugh term for those who agree mindlessly. He offers the term as praise, but in this context I clearly mean it sarcastically. You either have no working knowledge of the law and journalism, or are being willfully ignorant.
    > Watergate. Easy but true.
    “Bzzt – as recent events have shown, false. And, even before DT came out for the money, WG didn’t actually do anything good. (If a Dem had Nixon’s policy record, they’d be praising him as the second coming of FDR.)
    And, it’s ancient history.”
    So now you reveal yourself as a mere partisan hack. Did DT have an ax to grind? Sure. Did the Washington Post? Well, ‘recent events’ surely haven’t shown that.
    > Calls to abolish the journalist’s privilege–at least as they are on this page–are simply not grounded in the letter of the law.
    “Bzzt – wrong again. We’re talking about the shield laws. They’re creations of legislatures; they were passed because reporters were losing their motions to squash. These laws can be repealed. If said laws were repealed, said reporters would start losing their motions again.
    BTW – Watergate predates many/most of the shield laws, so even if you believe that it’s a good example, it didn’t depend on shield laws.
    Posted by Andy Freeman at June 17, 2005 07:15 PM ”
    Actually, no. The courts have recognized a form of journalist’s privilege since the mid nineteenth century. I highly suggest not arguing when it’s quite obvious you have no expertise or experience in the subject(s) at hand!