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Thursday, December 2, 2004

Blogs as a threat to freedom

Mark it on your calendars. Today was a big day in the history of the blogosphere. My blogfather, Eugene Volokh, had a piece published on the New York Times op-ed page, where he was identified as a blogger (with his site named) as well as a law professor at UCLA. And the point of his article illustrated with rare clarity how blogs have changed forever the landscape of journalism, and the role of media in society.

Any vicarious thrill I felt as a blogger, however, was more than counteracted by the chill in my bones caused by reflection on the implications of Volokh's article.

His focus was on the issue whether journalists should enjoy a First Amendment privilege to shield the identities of their sources. There are several cases pending around the country in which journalists are being threatened with jail time for refusing to reveal who disclosed certain information to them. Volokh argues, pretty persuasively, that the presence of blogs changes the framework within which the legal battles are being waged. He asserts that, under the Constitution, no legal distinction can be made between mainstream media, with audiences in the millions, and home-grown internet pundits, with audiences in the thousands or even hundreds:

Because of the Internet, anyone can be a journalist. Some so-called Weblogs -- Internet-based opinion columns published by ordinary people -- have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.

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.

Yet when everyone is a journalist, a broad journalist's privilege becomes especially costly. The I.R.S. agent [who wishes to leak someone's tax return illegally], for example, no longer needs to risk approaching many mainstream journalists, some of whom may turn him in. He can just ask a friend who has a blog and a political ax to grind. The friend can then post the leaked information and claim the journalist's privilege to prevent the agent from being identified. If the privilege is upheld, the friend and the agent will be safe -- but our privacy will be lost.

Volokh concludes that only a very limited journalist's privilege should be allowed. He draws the line between "leakers who lawfully reveal information" and "a leaker [who] tries to use a journalist as part of an illegal act -- for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published." I'm very uncomfortable with that line -- there's nothing except politics to stop Congress and the legislatures from arbitrarily declaring illegal a disclosure that causes little or no harm but advances justice or the legitimate political process. But Volokh's got a point: It will be awfullly difficult to extract from the current Constitution any distinction between big media and blogs, particularly given the current literalist mindset of many neocon judges, with whom I suspect Volokh sympathizes. The lack of such a distinction in turn poses a host of policy, and legal, problems. And those problems seem unlikely ever to be resolved in favor of the civil libertarians.

In some ways, the privilege issues are a symptom of the all-encompassing challenges that technology, and the internet in particular, pose to our traditional notions of government. Take the Freedom of Information Act and its state and local counterparts, for example. Several decades back, when these laws first required that government records be opened to anyone who asked to see them, we all applauded. But when someone decided to request and get the entire files of a state motor vehicle agency and post them on the internet, many people didn't like that. And so, rightly or wrongly, we started stepping back.

In the old days of paper records and photocopies, there used to be a certain "practical inaccessibility" to many public records, even those that were technically, legally available. There was simply no one (except the rare crusader such as b!X) who had the time to make the requests, spend the time, and pay the fees that it took to obtain, and sort out, meaningful information buried in voluminous public records. Of course, the computer changed all that. If you can get the records in a decent file format, you can now learn in minutes, without leaving home, what it used to take months to find out. When the computer eliminated the important practical barriers between the public records and the public, our ideas about what should be open changed.

The problem is that when the file drawers are closed to keep their contents off the internet, they're also closed to the folks who want to make an occasional request for a single record that's quite important to them. Technology blows things wide open for a short time, but then information is sealed more tightly than it ever was before. It's an alarming trend, but alas, not one that we're likely to see the end of any time soon.

Comments (9)

Yes, those 'neocon judges' -- I hear they hold mass sacrifices to Leo Strauss and Irving Kristol late at night in some federal courthouses.

'Neocon' has become devoid of meaning except "this new thing on the Right that I dislike."

Yes. Things like your comment.

You'd prefer a more descriptive term, like "arch-conservative" or "wingnut"?

I agreed with Volokh's idea of how a journalistic privilege should work. I wrote about it on my own blog, saying: "if the very act of revealing certain information is illegal, then why shouldn't a journalist be compelled to reveal the source?

Now, whether this applies to the journalists who have been found in contempt and threatened with jail time in the Plame case, I don't know, because I don't know the details of what information they are being asked to reveal. From what I understand, they are not the original receivers of the illegally-leaked information.

As for Robert Novak, who IS the person to whom the information was initially leaked, go ahead and throw him in jail if he won't talk. He became implicated in the crime, as far as I'm concerned, when he chose to print the information. Allowing him to conceal his source is allowing him to protect a criminal and conceal a criminal act."

I am an ardent supporter of the First Amendment, so I'm still mulling this issue over, but those were my thoughts yesterday.

I understand your discomfort with Volokh's idea, but I also feel like it's at least in the right ballpark.
I think it's a given that there will have to be some distinction between where to apply and where not to apply the journalist's privilege, and that distinction has to be made in kind and not degree. In other words, I'm not comfortable making that line between bloggers with 1,000 readers and a Times writer with 1,000,000, but I am comfortable making it between illegal disclosures and legal ones.
You're right that Congress could arbitrarily make any disclosure illegal, that makes me just as uncomfortable as it apparently does you, but my gut feeling is "too bad." We, as the electorate, are supposed to have a Congress that does what we want. If we allow them to write those arbitrary laws, they will. If we don't want those arbitrary laws, then it's up to us to do something about it and toss the bastards out. The root of your worry comes down not on what Congress might do but on what The People will let them do.

This really isn't a new issue. I remember wrestling with it when I was a journalism major at the UO in the early 1970s. My conclusion then (and now) is that there is no constitutional right of a reporter to protect his or her sources. There is nothing in the 1st Amendment (or Oregon's Article I, Section 8) that can reasonably be interpreted to grant such a right to an "established" or "official" press representative.

The freedom of the press applies to everyone, not just newspapers, radio stations and tv stations. If statutory reporter shield laws are passed by Congress or the states I believe they can pass constitutional scrutiny provided they don't represent content-based discrimination against certain media, but I just don't think you can make a good argument that a NY Times reporter is constitutionally protected from divulging his sources while a blogger or home newsletter publisher is not.

After all, Thomas Paine had far more in common with today's blogger than with either today's CBS or Fox News.

In journalism school they always taught us that the difference between mainstream media and your average Joe spilling gossip by publishing it on the web or otherwise, is basically nothing. So long as you can prove that at least one other person read the material and that there was malicious intent, you can sue for libel. If a journalist or a blogger "leaks" something by publishing it, they legally are no different (at least under my interpretation of the law). If a business or organization published a false claim in their newsletter, they could be sued for libel. It doesn't matter who or what their job description is, it just matters how many read it and if it was done in malice.

The issue with not disclosing sources, has always been argued. Whether it is The New York Times or a blog, I think it comes down to credibility and whether you trust the author to not make up fake sources to validate their point. You should always be skeptical when the writer quotes an unidentified source, no matter what the publication or prestige it might carry with it.

Talk about a threat to freedom: In today's Tribune, Nick Fish says to read Jack Bog's Blog.

Run for the hills!

Whenever a court subpoenas a reporter to reveal a confidential source, people get outraged when the reporter faces repercussions for failing to obey the court. People have this Woodward & Bernstein-induced romanticism toward "freedom of the press". They think the First Amendment supplies them with a blessed crucifix bathed in holy water whenever the evil judge orders them to reveal a source.

"Who gave you those documentssssss? Who told you that? Sssss..."

"Back, vile demon! And tell Hugo Black we miss him."

It's hogwash. The press gets very little constitutional protection beyond what Joe Blow gets. I'm not aware of any case (though I'm not aware of them all) where the USSC said, "Yeah, you're right. Tell the trial court to pound sand for asking about the source." But there are a few saying otherwise.

In Branzburg v. Hayes, the opinion Volokh refers to but didn’t mention, the USSC said the following:

"The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do, and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas, and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence. [n21] The claim is, however, that reporters are exempt from these obligations...

[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof..."

I believe those states offering reprieve do so through statutes, not their constitutions. Constitutionally, there isn’t protection stopping a reporter from being compelled to reveal a source in grand jury regarding criminal conduct. It sure sounds like the lower courts Volokh mentions are making up law and using dicta in a concurring opinion for their rationale. How hugely lame. One can imagine the lower court judge’s thought process: “Hmm, here’s the result I wish to achieve. Now what justification, however legally asinine, can lead me there?”

It was a Constitutional Law professor at Jack's skool who said in class there simply wasn't a freedom of the press. Hyperbole, no doubt, but point made.

In a big case where the reporter refuses to identify the source, the court typically finds him in contempt and either imposes a daily fine, jail or both. The reporter then just needs to not give in. The remedy for the reporter's refusal is considered incentive--not a penalty. Therefore, when the court realizes the reporter will not comply despite the fine/jail it stops the fine/opens the jailhouse door, takes its ball and goes home.

This is all somewhat off-topic but journalists' failed understanding of the law, especially that which they hold dear, annoys me. Isn't it their job to know these things?

I was taught that there really is no constitutional privilege of the press in law school as well. It is also my understanding that some states do shield journalists with statutory protection from some disclosures in response to a subpeona. I tend to think that this is a good idea. It is possible that the privilege will be abused, as any privilege is likely to be, but the benefits to citizen control of government is well worth any trouble.

I think Volohk is, as usual, on the wrong side of the issue. Instead of remedying his hypo with the destruction of journalism, we should greatly strengthen privacy rights. We shoud make it far easier to maintain a suit for intentional invasion of privacy against members of the press, including bloggers. You discourage personal hits such as Volohk uses as his straw man, and you don't have to eviscerate the ability of the traditional press to hold government accountable through whistleblowing and leaks.

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