The Great Change: Turning Cathy into a Lawyer

Journalists' privilege has been quite the topic lately. That is, does a journalist have the ability to promise anonymity to a source and be able to maintain that promise, even in the face of compulsion to testify.

It's a right near and dear to me. In high school as the editor-in-chief of the school paper, we promised anonymity to a letter writer confessing to some politically-motivated criminal mischief. The school administration, obviously miffed at what had happened under their noses, hauled me into the principal's office and demanded I turn over the letter and identify its source. They then gave my name to the police so that they could call me up and demand the same thing. I refused and retained the help of the Student Press Law Center and the ACLU. They backed down.

The shield law (how this privilege is known) is an important tenet to a free press and the good it provides in buttressing democracy. If journalists were forced to limit their inquiries to that which could safely be provided by sources without risk to their own well-being, journalists would have access to much more limited information. To find out what's really going on, journalists need to be able to get information from people closer to the source without putting them in jeopardy. If journalists can't promise that protection of anonymity, fewer people with information we all need to know about will be willing to share it.

There is more that can be said on this issue, but in the meantime another nuance has come up, which is to what extent bloggers would be protected by any right or privilege that is associated with the press. Recently Eugene Volokh wrote an op-ed in the New York Times arguing that bloggers should be able to claim that privilege, to the extent that privilege can be claimed by anyone. While his ultimate thoughts on the applicability of the shield law may not completely align with mine his association of bloggers with journalists as we currently think about them is what I want to point out here:

The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Yesterday I posted a similar thought on another blog in a discussion about indemnifying bloggers for libel suits and such. While the poster agreed that there should be some sort of financial protection for bloggers, he made a recommendation that it be provided by the blogging services. (There are blog-specific ISPs like Blogspot, TypePad, Blogger, Salon, etc. that allow people to set up their own blog on their infrastructure. It is also possible to set up blogging software, like Moveable Type, on a computer you control.) I wrote:

There is a subtext to the proposal that the blog hosts provide some sort of coverage, and it's similar to a subtext I see in some of the other articles considering where bloggers would stand in terms of shield law privileges, etc. - things we associate with "The Media." And that is, that you have no legitimate claim to being the Press unless someone else owns your press.

I opted to self-host for that very reason - I did not want any other entity to be able to claim any sort of ownership control over my work. It's my press, my voice. So if we, even inadvertently, start forcing bloggers into the corporate bosom* for "protection" we may very well eliminate the benefit of independent media that the blogging revolution has brought. We need to make sure that these independent voices can stand protected on their own.

The policy merits of having a free press extend to these independent mini-presses. In fact, they may be more valuable to our democracy than the over-consolidated mainstream press.

* I made a few minor changes in posting it here, using the word I'd been futilely searching for yesterday, and spelling other words I used correctly...

Update: This post on BoingBoing about the MSN blog hosting services implicates some of the concerns I raised.