Privilege and Protection

Last December on PBS News Hour, media correspondent Terence Smith spoke with First Amendment attorney Floyd Abrams about the way the First Amendment protects reporters and journalists from reporting their sources. The protection of the First Amendment is what allows real journalism in the first place-- if they were not assured of protection under the law, (a) journalists would be less likely to get involved with controversial investigations, and (b) anonymous sources would be less likely to divulge valuable information. The question, now, in this new media world, is whether First Amendment protection similarly applies to bloggers. What makes a journalist? In response to this question, Abrams said the following:

FLOYD ABRAMS: I was asked that today, and I said as I say here, I think a blogger ought to be protected also. It seems to me that the purpose of this privilege is to protect the people who play a function in American life.

It's not to protect reporters as such. It's to protect people who gather information and disseminate it on a widespread basis to the public. So I think eventually if there is a privilege, and that's one of the things the court's going to deal with, but if there is a privilege here, whether it's rooted in the First Amendment or what's called federal common law, I think it should apply to bloggers as well.

I generally agree with Abrams. Of course, it's worth noting that protection under the First Amendment for journalists (and others) is different from attorney-client privilege. Why? Because we license attorneys. We don't license journalists, nor should we since the ability of the media to act as a watchdog (even if they fail at this occasionally) is both significant and necessary.

The argument could be made that we should license bloggers in some way, or at least credentialize them. This would have a two-fold effect: (1) educate readers about which bloggers are reputable, and (2) give bloggers the credentials to conduct the sort of investigative work that has thus far been the claim of journalists.

That argument would be wrong, and is rooted in the assumption that journalists are somehow, whether through training or employment, more qualified than the average citizen-blogger and less likely to fudge the details or outright manufacture facts. I don't think either of these are true, and one only has to look at the past year--a year of Gannongate, Sinclair Broadcasting, Texas National Guard records, and the Downing Street memo--to realize that bloggers are both capable and willing to exercise--with integrity--real investigative work.