DC Circuit on Blogging and the Reporter's Privilege:
The DC Circuit has ruled that Judith Miller and Matthew Cooper have no First Amendment privilege not to testify in the Plame investigation, and that if a common law privilege exists it does not apply in their case. In a separate opinion rejecting the notion of a common law privilege, Judge Sentelle pointed out some of the difficulties of applying such a privilege in light of the blogosphere:
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?Judge Tatel also wrote separately on the common law privilege question, citing blogfather Eugene's New York Times op-ed along the way. Judge Tatel wrote that he would recognize the privilege, and responded to Sentelle's concern about bloggers by arguing that such distinctions could be drawn on a case-by-case basis:
Nor does it matter that unconventional forms of journalism—freelance writers and internet "bloggers," for example—may raise definitional conundrums down the road. See sep. op. at 5-9 (Sentelle, J., concurring); but see Eugene Volokh, Opinion, You Can Blog, But You Can't Hide, N.Y. Times, Dec. 2, 2004, at A39 ("[T]he rules should be the same for old media and new, professional and amateur. Any journalist's privilege should extend to every journalist."). As Jaffee makes clear, "[a] rule," such as Rule 501, "that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner." 518 U.S. at 18. After all, "flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." Hurtado v. California, 110 U.S. 516, 530 (1884). Here, whereas any meaningful reporter privilege must undoubtedly encompass appellants Cooper and Miller, full-time journalists for Time magazine and the New York Times, respectively, future opinions can elaborate more refined contours of the privilege—a task shown to be manageable by the experience of the fifty jurisdictions with statutory or common law protections.