From the Spring 2008 issue of The News Media & The Law, page 1.
I have come to hate the word “blogger.”
My first indication “blogger” was going to play a big role in modern media law came during a federal appeals court hearing in 2004.
“Would this reporter’s privilege apply to one of those [imagine a near sneer] bloggers?” Judge David Sentelle asked media lawyer Floyd Abrams during the argument on behalf of reporters Judy Miller and Matt Cooper, who sought to quash a subpoena seeking the identities of their sources in the investigation of former White House staffer I. Lewis “Scooter” Libby.
(I have a hunch that at the time Judge Sentelle had only a slim clue as to what a blogger was. I had images in my head of him being briefed on the subject by his more hip law clerks just minutes before he took the bench.)
The judge may have been one of the first to raise the issue of a reporter’s privilege for bloggers, and he was certainly on to something. At the Reporters Committee, not a day goes by when a congressional staffer, reporter, radio talk show host or prosecutor doesn’t raise the issue of whether bloggers are “real” journalists.
The answer should be obvious. Some are. Some aren’t.
When a reporter calls us asking for help, we don’t get bogged down by how she disseminates her work. Journalists tell their stories via paper, airwaves and electronic impulses. Heck, I’d be comfortable defending a journalist who posted on a bulletin board a story written on a paper towel.
How do I tell whether a blogger is a journalist? To quote former Supreme Court Justice Potter Stewart (totally out of context, I’ll admit): “I know it when I see it.”
I know it when I see it by looking at the function being performed by the reporter. I didn’t come up with this idea out of the ozone. The “function test” has actually been around for more than 20 years, and it works quite well.
In 1987, the U.S. Court of Appeals in New York (2nd Cir.), was faced with the question of whether a nonfiction book author was entitled to the reporter’s privilege under the First Amendment.
In von Bulow v. von Bulow, Claus von Bulow was sued by the children of his wife, Martha “Sunny” von Bulow, for allegedly injecting her with insulin and other drugs, resulting in a terminal coma. His girlfriend, who told the court she was writing a book, claimed the privilege so that she would not have to testify during trial regarding conversations she had with sources for her book.
The appeals court said journalists have First Amendment rights, regardless of whether they work alone or for the established media. It fashioned a test focusing on the intent of a person claiming the privilege and the function they are performing: “We hold that the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material — sought, gathered or received — to disseminate information to the public and that such intent existed at the inception of the newsgathering process.”
Applying the test, the court found that von Bulow’s girlfriend was not entitled to the reporter’s privilege because while she intended to disseminate information to the public, at the time she collected the information she did not intend to write a book, but rather to assist with von Bulow’s criminal defense.
The von Bulow test has been adopted in at least three other federal circuits. On occasion, courts have found that the person seeking a testimonial privilege was a journalist, and on other occasions they have ruled that they weren’t. By focusing on the intent of the journalist at the time the information was gathered, a judge does not have to evaluate the technology used to disseminate the story.
Over the past four years, Reporters Committee staffers have worked hard with other journalism organizations and companies to craft a workable federal shield law. Judge Sentelle’s question about protection for bloggers has never been far from our minds.
We know Congress won’t go for a law that covers everyone who has a computer. We also know we can’t be too conservative in granting a privilege. There are some Internet-based journalists who in the not-too-distant future clearly will need to be covered by a privilege to the same extent as traditional members of the media. Using a variation of the von Bulow function test to define who is a journalist works well.
How will you know when a blogger qualifies as a journalist? You’ll know it when you see it.