Opinion: Shield Repealed

Whatever its other consequences for the Republic, the investigation
that resulted in the perjury trial of I. Lewis “Scooter” Libby produced
a memorable manifesto for a troubling but hard-to-refute position: that
the dawn of the blogosphere has fatally complicated the argument for
legal privileges for journalists. […]

Recently a state appeals court extended the California shield law’s
protection to online news services as well, an innovation welcomed by
The Times in an editorial endorsing a federal shield law. But that
doesn’t really answer the question left hanging by Sentelle, which is
basically: Why stop there?

I’m familiar with all of the answers: One formula is to say that the
reporter’s privilege attaches to anyone in the business of journalism.
But what does that mean? Must you be paid for your blogging to earn
that protection? What if no news organization wants to buy, or even
link to, the article that you put together with the aid of a
confidential source? And if an uncompensated blogger is entitled to the
privilege, why not the teenager down the street and his MySpace page?

The leading alternative to the “professional” template as a
justification for a journalist’s privilege is a distinction between
reporters and opinion-mongers. But that doesn’t work either — MSM
editorial writers have the same privilege as their colleagues in the
newsroom, while in the blogopshere (as on the op-ed page) reporting and
commentary are often commingled. Robert Novak, after all, is an op-ed
columnist. And the dirty secret about the First Amendment is that it
was adopted at a time when newspapers didn’t practice “objective”
journalism.

Long before the blogosphere was born, legal deep thinkers massaged the
question of whether the freedom of “the press” safeguarded by the First
Amendment meant something more than freedom of speech for
the press. The age of the blogger may have rendered that debate moot,
because now everyone with a PC or a BlackBerry has a “press.” Yet
everyone can’t have a journalist’s privilege — or it’s not a privilege.