Blogs and the Law

By: Paul Milo A California judge recently passed on the chance to help settle the phony existential debate that has roiled the traditional media for a decade: Can independent, online news-gatherers invoke shield-law protections, thereby obtaining the status of ?journalists? under the law?

The answer should be yes -- despite the residual prejudices of some media elites against the Internet?s lone wolves. Reporting by bloggers a few years ago helped topple former U.S. Senate leader Trent Lott. And ?guys in their pajamas? -- to paraphrase one former CBS executive?s impolitic comments -- took the legs out from under Dan Rather?s ?scoop? regarding documents that allegedly proved President Bush did not fulfill his National Guard obligations.

Fortunately, the large and growing consensus among mainstream journalists is that there's no problem acknowledging the obvious fact that good reporting isn?t confined to traditional newsrooms. Unfortunately, some judges in the 31 states that have shield laws (the District of Columbia has one as well) are asking the wrong question when trying to figure out if a defendant can legally withhold -- or ?shield? -- the identity of his or her sources in court.

Judges too often get hung up on trying to figure out if a defendant is a ?journalist.? Instead, the courts should be trying to determine whether what the defendant is doing is journalism -- a subtle yet vitally important distinction.

That brings us back to the California case, which involved three bloggers who leaked information about products being developed by Apple, the computer company. Apple brought the bloggers to court, demanding that they reveal the identity of their sources. Attorneys for the bloggers argued that, as journalists, they were entitled to shield-law privileges; Apple, among other arguments, claimed that the three defendants were not journalists at all.

In March, Judge Harry Kleinberg decided in favor of Apple, arguing that Apple?s right to protect its trade secrets trumps the bloggers? desire to disseminate them. But the judge also cited California?s shield law -- which refers to individuals working for newspapers, magazines, and radio and television stations -- in ruling that it was ?far from clear? whether one of the bloggers, Jason O?Grady, had the right to protect his sources. Kleinberg left unanswered the question of whether blogger O?Grady can call himself a reporter.

To the extent that Kleinberg?s ruling -- which is being appealed -- focuses on what the three bloggers did, then it?s in safe territory. Generally, journalists cannot invoke the shield law if the information does not serve the public interest or if in reporting it some other law is broken. Kleinberg believes that Apple has a legal right to protect its proprietary information and that no one is legitimately served by revealing it; others may -- and do -- disagree.

Things get a lot more slippery, however, when Kleinberg broaches the so-called distinction between a blogger and a journalist.

Shield laws in California and in many other states refer to employees of ?news organizations? and specific types of media, like wire services. But what constitutes a news organization? Is there a threshold number of viewers, listeners, or readers that a business has to reach before that status is conferred?

And more paradoxes abound. If those who operate free sites in the blogosphere don?t meet the common definition of a news organization, then perhaps they could print up their blogs and distribute them free on the street corner, as Amy Ridenour suggested in a recent post on her site, Amy Ridenour?s National Center Blog. Would the result be a periodical, and hence covered?

The Apple case merely puts a high-tech gloss on a question that has occasionally cropped up in the decades since modern shield laws first began to be codified in the 1930s. Writers in more conventional media have been confronted with this issue as well.

A prospective author working on a book about a murder case, Vanessa Leggett, spent five months in jail about three years ago for refusing to reveal her sources. While the judge ruled that a recognized mainstream journalist would likewise have been incarcerated, prosecutors also questioned whether Leggett passed the ?reporter? test at all, given that she was, in the court?s words, ?virtually an unpublished freelancer.?

Julie Hilden, a writer and attorney who practiced First Amendment law at a Washington, D.C., firm, defended Leggett in an online column published in 2002 on the FindLaw Web site. The lawyers who convicted Leggett would not argue that a prosecutor working his first case was not a prosecutor simply because he had never tried a case before, Hilden notes.

Instead, as with bloggers, Leggett?s status should have been determined by her work, not her affiliation. ?What I object to is the idea that only someone whom a media corporation of sufficient prestige decides to employ as a journalist, can actually count as a ?journalist? ... shield law should protect journalism, not journalists,? Hilden told me recently.

There are concerns, however, that extending shield-law privileges too widely may render them meaningless, that some barrier to entry should remain in place. But such a barrier can be erected without falling back to an exclusionary definition of what a reporter is. And that barrier consists of asking whether the person in question is contributing to the free flow of information and serving a legitimate public purpose.

Instituting such a standard would permit a blogger who learns that the local chemical plant is dumping mercury in a stream to hide behind the shield. Meanwhile, the jilted boyfriend spreading online gossip about his ex-lover would not be protected.

Connecticut Sen. Christopher Dodd has recently introduced legislation that would create a federal shield law. While this is a welcome development, critics note that the language seems only to include reporters of a more conventional stripe.

This is unfortunate. While only relatively few people have the time, skill, and wherewithal to do truly useful reportage, that number is not limited to those who get a paycheck from a ?recognized? media organization. It?s time for the courts to apply a dictionary definition of what a journalist is: one who does journalism.