At the blogging colloquium Eugene Volokh gave a presentation on the free speech protections that might be available for blogging, with the important (and, in my opinion, eminently reasonable) suggestion that free speech protections are not medium-specific. In other words, if they'd be available to you if you'd put your thoughts on paper, they would be available if you'd put them on a blog.
Where I commented was on his analysis of how the newsman's privilege might apply to blogs. Many seem to think this is a big thorny question since there are so many bloggers and thus so many people who may claim to be journalists. Personally I think if blogging gives us more journalists that's a good thing, but the fear is that because the newsman's privilege can keep information from being made available to certain judicial proceedings, if there are too many journalists because of blogging, too much information could be kept from the courts.
I don't share this fear. I think the overall policy balance that has been struck in the past - that it's better to allow the privilege to keep some information from the courts because, were it not for the privilege, often none of the information would have come to light at all - can scale to accommodate blogging. In other words, while more information might be kept from the courts, because of blogging more information will reach the courts in the first place. The relative percentage of information kept from the courts should be about the same as it was under the traditional media model.
Thus the inquiry for whether and when there should be a valid privilege available for bloggers should be the same as it has been for traditional media. Which is consistent with Volokh's overall thesis. Where I differed from Volokh was in suggesting that instead of evaluating whether the reach of a particular blogger justified his entitlement to the privilege, the analysis should instead hinge on the blogger's functional intent. In other words, as long as the blogger was engaging in a traditional newsgathering activity - gathering information for the purpose of disseminating it more widely - he shouldn't be penalized for having a smaller readership by depriving him of the privilege. Important free speech rights should not be allocated based on popularity. A lonely pamphleteer or a lonely blogger may just be crying into the wind with their information, but if their intention was to have their information be heard, that is what should earn them the privilege. Furthermore, due to the nature of the Internet and its habit of never forgetting anything published on it, the lonely blogger's post is likely to have a greater and more lasting effect than the lonely pamphleteer, whose First Amendment rights are more traditionally recognized but whose pages will wrinkle and rot over time. The true effect of a blog post may not become apparent for days, weeks, or even years after it is first posted. So if we were to assign journalist's privilege based on readership, at the very least there would be a significant problem of metrics - at what point should we count the readers?
Ultimately it's the effect of the blogging that is most pivotal. Did it bring something important to light that otherwise would have gone undiscovered? Was privilege necessary in order to do it? To the extent that the answer to these questions is yes, the same reasons for allowing the privilege in the traditional media context should apply in the blogging context. Where things get messy, however, is in navigating the different types of privileges that might apply. Would it be an absolute privilege, or a qualified one? Would it be state or federal in origin? Volokh's analysis mostly hung on these questions, as he parsed the relative state statutes to see what type of privilege they might allow. The problem is that if a blogger does not know whether or not he has a privilege at the time he does his reporting, it is hard to make the argument that he should be allowed to assert it later because he can't make the "but for" argument - that "but for" the privilege he wouldn't have discovered the information, since as far as he knew he didn't have it. It would be contrary to the policy of offering any sort of newsman's privilege if it could be retroactively asserted since its existence had offered no utility to the gathering of the information in the first place.
But the fact of the matter is that even for traditional media the newsman's privilege has been a very murky area of law. Yet it appears that journalists have largely been resolving that ambiguity in favor of the belief they do, in fact, nearly always have the privilege. Ultimately that belief should carry weight, because even if in fact the privilege hadn't clearly been available, if relying on the plausible belief that they would have had its protection had been essential to their newsgathering, then the important policy values behind the privilege would be vindicated. For bloggers, then, the same should also be true, and this is another reason why gauging their intention is so important. Just like with a traditional reporter, if the blogger intended to investigate and reveal the results widely, and if believing they had the newsman's privilege was necessary to do so, then the results of their investigation should similarly be protected by it.
Written 5/2. Edited and posted 7/9. Edited again 2/8/07