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.