Not so long ago (like, February), the debate over who’s a journalist and who isn’t was pretty much confined to journalists, bloggers who wanted to be considered journalists, and bloggers who explicitly did not want to be considered journalists.
Not any more.
In California, Apple Computer has sued bloggers who, it claims, posted company secrets on their Web sites. The company has asked a judge to order the bloggers to identify themselves. The bloggers — the sites named are Thinksecret.com, Appleinsider.com and Powerpage.org — claim they are protected by a state law that shields journalists from naming their sources.
As the New York Times’ Jonathan Glater writes today, the judge’s decision on the request could have broad implications:
If the court … rules that bloggers are journalists, the privilege of keeping news sources confidential will be applied to a large new group of people, perhaps to the point that it may be hard for courts in the future to countenance its extension to anyone.
Glater quotes Susan Crawford, a law professor at Cardozo law school of Yeshiva University (and a blogger), who says: “Under what circumstances should an online forum be forced to disclose a source behind information that they’re posting? There is no principled distinction between a New York Times reporter and a blogger for these purposes. Both operate as news sources for wide swaths of the general public.”
Judge Kleinberg is likely to try to decide the case on the narrowest possible grounds, perhaps reading the text of the California law at issue to cover only people who work for traditional newspapers and magazines or television news programs, and to avoid deciding if bloggers are indeed journalists, Ms. Crawford said.
The question of who is a journalist is to many a matter of deeper concern, writes Glater:
Some bloggers want any protection available to journalists at traditional media companies to also be available to them, and journalists at those companies want to make sure that the reporter shield privilege is preserved.
Yet if recognizing a privilege for bloggers means that everyone online can maintain that they are journalists, judges may conclude that rather than giving everyone the privilege, no one should have it. That possibility worries reporters, who could find themselves at new risk for what they write or broadcast.
The medium should not be the determining factor, argues Jack Balkin, a Yale law school professor (and blogger). Rather, it should be the message. Writes Glatner:
So a blogger who interviews people and spends significant amounts of time gathering and organizing information could claim the privilege; a blogger who wrote about good and bad recipes, and who one day stumbled onto a copy of the Pentagon papers and printed them, might not.
And while the California judge’s ruling on the blogger-as-journalist issue may come soon, the White House has already stared the question in the eye — and punted.
Today, blogger Garrett M. Graff, editor of FishbowlDC, was awarded his much-sought-after day pass to the White House press briefing room. “Mr. Graff, 23, may be the first blogger in the short history of the medium to be granted a daily White House pass for the specific purpose of writing a blog, or Web log,” writes the Times’ Katharine Q. Seeyle. “A White House spokesman said yesterday that he believed Mr. Graff was the first blogger to be given credentials.”
For the past week, Graff chronicled his efforts to obtain the pass from the White House. Not until journalists rallied on his behalf did the wheels begin to turn. Writes Seelye:
Scott McClellan, the White House press secretary, said he had met with the White House Correspondents Association and they had decided to let Mr. Graff in. “It is the press corps’ briefing room and if there are any new lines to be drawn, it should be done by their association,” he said.
There’s yet another definition debate brewing on Capitol Hill, in the form of the Free Flow of Information Act, in two identical bills currently pending in Congress. The legislation would cover publishers, broadcasters and wire services and those who work for them, as well as freelance journalists, allowing them to refuse to reveal sources of information in federal court proceedings. Those without contracts and those who publish solely on the Web would not be granted protection. And that has bloggers worried.
“Would a blogger who obtained information in the course of writing for a blog but who also writes books, or plans to write a book, be covered, but one who has no such plans not be covered?” asks blogger Amy Ridenour. Yale law professor Balkin tells the Times’ Glater that in 15 years “there may be no clear distinction” between reporters and bloggers.
Bloggers hope he’s off by about 14 years. One thing is clear, however; this debate will no longer be confined to the principals. And bloggers might want to think twice about what they wish for — and heed a lesson that journalists learned long ago, and relearn every day:
The government that grants “rights” is the same government that may want to define and impose “responsibilities” and “limitations” that go along with those rights. And that’s a noose that can go from slack to tight in the flash of a judge’s eyebrow.
Susan Q. Stranahan wrote for CJR.