Equal privilege

Equal privilege

: Eugene Volokh rights a superb op-ed in today NY Times proposing a new, limited standard for shield laws that does not protect illegal activity — but (and he doesn’t emphasize this but does presume it) extends such privilege to anyone acting as a journalist, which is to say: bloggers.

: I tried to deal with similar issues here — when I asked whether you would go to jail for your blog — but didn’t do it as well as Prof. Volokh, of course.

  • Dan

    Wish I could right that well.

  • I know the intention here is to extend something into infinity just in case it applies some time in the future, but as it stands now, bloggers are rarely reportorial. You have your Smoking Guns and the occasional gang tackle on a CBS memo, but by and large blogging at this stage is either done as opinion, as diary, as satire or as aggregator. Some of those things are similar to journalism and might be classified as subphylum journalism hybrids, but nothing close on any broad level to a form that would require a shield law.

  • Franky

    Bloggers want the powers of journalists without any of the responsibility.
    I think almost all the pro-war bloggers bought hook, line and sinker the fabricated smear against British MP George Galloway, that he was taking kickbacks from Saddam etc.
    Today he was cleared, and those who had accused him were forced to pay him around $300,000 in libel damages.
    I await to see the bloggers take their responsibility seriously and fall over each to be the first to print their apologies.
    Surely, these bloggers wouldn’t reveal themselves to be hacks?

  • Franky, that’s a disingenuous reading of the case. The truth of the kickbacks allegation was not the basis of the defense or the verdict in the Daily Telegraph trial. Rather, the newspaper made a bid to stretch the British libel law by saying it acted “in the public interest” by publishing allegations. The judge did not agree. It’s a fascinating case that leaves me feeling glad to be living under the U.S. First Amendment instead of British libel law. Here’s a good intro:

  • Dishman

    There are bloggers who do original work, including reporting:
    Jeff Jarvis has done his own original investigative reporting regarding the FCC.
    Eugene Volokh and co. have done original legal writings that have been cited by appellate decisions.
    Glenn Reynolds has done original photojournalism.
    Bill from InDC did significant work during RatherGate.
    IraqTheModel and PostModernClog have recently provided first-hand accounts of events that are local to them.
    These examples are just things that immediately came to my mind, things I’ve encountered in my own narrow experiences. It takes some digging, but I think we’ve got at least a few sources almost everywhere but North Korea.
    As for the “responsibility” part, I’m not sure what responsibilities you think journalists take. Eason Jordan and Dan Rather come to mind regarding journalistic responsibility, integrity and courage.

  • Franky

    Regardless of the merits of British libel law, the judge called the article “seriously defamatory” and suggested that it was not true, i.e. it was libellous, hence the monetary award.
    Of course, it doesn’t help the Telegraph that Christian Science Monitor backed off the allegations (probably realising some Western intelligence agency just might have been conencted to the documents) and Telegraph didn’t give Galloway any idea of what was in the documents when they briefly interviewed him for the article.
    Where was Instapundit bemoaning that lack of journalistic responsibility?. Of course, it’s only irresponsible when your opponents do it.
    And of course, I’ll also wait for the howls of outrage that security services would seek to falsely smear an elected member of parliament. Well, I guess in this world – where no rules are observed by either side and no accusation is to low to make to further your side – he shouldn’t have opposed the war.

  • 1. Obiter dictum doesn’t equal “cleared.” The Daily Telegraph case involved one set of documents. There are others. But you’ve already changed your base of argument, so it doesn’t matter and neither does your argument.
    2. The question here is whether blogging is “press” or simply “speech.” Both are protected by the same Constitutional clause, and overlap in some degree, but the legal evolution of each protection has been different. There are organizations that defend speech (ACLU) and those that defend press freedom (ASNE), but if you fall between the two, you can easily be chilled. Which are we, or are we a third thing?

  • Franky

    Where did I change the base of my argument? I pointed out further hypocrisy of these who swallowed the story in that they didn’t care that he wasn’t given a chance to respond to the allegations. It was an obvious hitjob on a leading opponent of the war, there was obviously no evidence behind the accusations – otherwise he wouldn’t have won.
    With my limited understanding of libel law, I would imagine Galloway would have a fair chance of winning a libel case here given that one of the crtieria is reckless disregard of the truth (i.e. not attempting to interview him on the substance of the allegations).
    But then I’m inclined to think that someone who doesn’t care about security services smearing elected politicians just because they don’t like what that politician says is not someone whose opinion i would truly value.