The blogosphere took a hit recently when a California judge ruled that Web loggers must reveal their sources for confidential Apple Computer (AAPL) Co. documents that they posted on their sites. But the collateral damage in that case may spread to all media, including the business press, by undermining its role in disseminating information to the public. Apple certainly has the right and obligation to seek prosecution for those who stole its intellectual property. But the transmission of information to the public at large is the job of the media, both online and off.
Against the wishes of powerful people trying to control information, the media have revealed corruption in Enron, WorldCom, and elsewhere in Corporate America, as well as questionable government policy going back to the Pentagon Papers. In a free society and a free market economy that depend so much on information, the media play a key role.
Clearly, there are built-in tensions between the media's dissemination of information to the public and the demands for secrecy from the government and industry. But courts have been adjudicating that for many years. The newer issue arising from the Apple case concerns the position of bloggers as journalists in America. The judge ducked the question of whether or not bloggers deserve the same First Amendment and state shield law privilege to protect sources that mainstream journalists possess. That was unfortunate. In principle, it's only fair to say bloggers acting like journalists are, in fact, journalists -- regardless of what platform they use. America has a long history of pamphleteers expressing their views, and it has extended First Amendment rights to nearly all of them over the years. Bloggers are no different.
But in practice, the prospect of 10, 20, or 50 million bloggers claiming journalistic privilege terrifies judges and First Amendment lawyers alike. They fear that anyone who has a Web site, if called to testify by a grand jury, could claim the privilege and refuse to cooperate. The flow of information to the judicial system could dry up as courts spend countless hours balancing the need for testimony against the public's desire for information and the blogger's demand to protect sources to give it to them. The great fear is that the courts will simply get overwhelmed and judges won't extend First Amendment protection to any journalist -- regardless of medium. The courts will, in effect, say that a privilege extended to nearly everyone is a privilege that no one should receive.
What to do? At the risk of being accused of being an elite mainstream media publication, we believe we must face this judicial reality and begin a conversation about who is a journalist. Courts have struggled with this issue for some time. The 31 state shield laws already on the books can help.
Most argue that you must work at some kind of media organization, be it a newspaper, magazine, TV show, or something else, to be awarded special privilege. A number of states define journalists functionally, as newsgatherers or investigative reporters. So a certain regularity and consistency in posting information would help qualify a blogger as part of the media. Being independent and not on the payroll of the organization you are covering would also be part of the definition (whistleblowers aren't journalists but are protected by different laws). The number of people bloggers reach might also be a consideration, but that can become tricky. If only your Mom reads your blog, are you really a member of the media?
It's easy to see where huge philosophical problems might emerge. Employees who put their companies' trade secrets on their blogs can't be journalists. They're thieves. But what if they've been blogging for a long time, providing real information to many people? Do these bloggers have First Amendment and state shield law privileges protecting themselves as sources? It's a very complex issue.
Over time, the courts and the law have extended journalistic privilege to an ever-wider range of people. Freelance writers are now covered, as well as book authors and scholars. The courts have split on giving academics privilege but have extended it to such political advocacy groups as the Anti-Defamation League.
What is needed is yet another expansion of the criteria to encompass those bloggers who truly practice the craft of journalism. Technology has liberated individuals from having to work within any specific journalistic organization and it is time for the law to recognize that fact. Both the media and the courts will be grappling with this issue for years. But by many of the criteria already on the books, the blogger sued by Apple, who runs the ThinkSecret.com site, is a real journalist.