JurisPundit writes me, seeking comment on a D.C. Circuit ruling that surprisingly referenced bloggers (that reference anticipated in part by a Eugene Volokh op-ed):
Just wondering if you caught Judge Sentelle's blog reference in his In Re:Grand Jury Subpoena, Judith Miller opinion? I must admit that I failed to catch this, but LawPundit was on the ball.
The Supreme Court went on to observe that "freedom of the press is a 'fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)).
Heck there's even a reference to pajama-bloggin. As LawPundit points out, it would appear to logically flow from Sentelle's analysis that any right bestowed upon MSM journalists would also belong to bloggers. Sounds cool...except that Sentelle's opinion ruled that MSM journalists don't have any rights.
Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?"
Without delving deeply into the case, I take it the D.C. Circuit's reasoning is that there is no special reporters' privilege when any of us can be a reporter. If any of us can be a reporter, then all of us could potentially have such a privilege. Of course, it could be limited so that it applies only when we act as reporters, but Judge Sentelle notes that that is open to easy gaming--especially through blogging websites.
The counter perhaps to Sentelle's reasoning is that it may be possible to inquire into whether one is a bona fide reporter--even a bona fide blogger, functioning as a reporter.