Posted by Orin Kerr:
DC Circuit on Blogging and the Reporter's Privilege:
The [1]DC Circuit has ruled that Judith Miller has no First Amendment
privilege not to testify in the Plame invetsigation, and that if a
common law privilege exists it does not apply in her case. In a
separate opinion rejecting the notion of a common law privilege, Judge
Sentelle pointed out some of the difficulties of applying such
privilege in light of the blogosphere:
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? How could one draw a distinction consistent with the
court's vision of a broadly granted personal right? If so, then
would it not be possible for a government official wishing to
engage in the sort of unlawful leaking under investigation in the
present controversy to call a trusted friend or a political ally,
advise him to set up a web log (which I understand takes about
three minutes) and then leak to him under a promise of
confidentiality the information which the law forbids the official
to disclose?
Judge Tatel also wrote separately on the common law privilege
question, citing blogfather Eugene along the way. Judge Tatel wrote
that he would recognize the privilege, and responded to Sentelle's
concern about bloggers by arguing that such distinctions could be
drawn in a case-by-case basis:
Nor does it matter that unconventional forms of
journalism--freelance writers andinternet "bloggers," for
example--may raise definitional conundrums down the road. See sep.
op. at 5-9 (Sentelle, J., concurring); but see Eugene Volokh,
Opinion, You Can Blog, But You Can't Hide, N.Y. Times, Dec. 2,
2004, at A39 ("[T]he rules should be the same for old media and
new, professional and amateur. Any journalist's privilege should
extend to every journalist."). As Jaffee makes clear, "[a] rule,"
such as Rule 501, "that authorizes the recognition of new
privileges on a case-by-case basis makes it appropriate to define
the details of new privileges in a like manner." 518 U.S. at 18.
After all, "flexibility and capacity for growth and adaptation is
the peculiar boast and excellence of the common law." Hurtado v.
California, 110 U.S. 516, 530 (1884). Here, whereas any meaningful
reporter privilege must undoubtedly encompass appellants Cooper and
Miller, full-time journalists for Time magazine and the New York
Times, respectively, future opinions can elaborate more refined
contours of the privilege--a task shown to be manageable by the
experience of the fifty jurisdictions with statutory or common law
protections.
References
1. http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf
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