Media Rights, not Journalists’ Rights:

The argument that “bloggers cannot wear two hats simultaneously: that of journalist and that of partisan activist,” which I referred to Friday makes a basic mistake; it assumes that the media exception to campaign finance law and the privilege to conceal the identities of anonymous sources only apply to people who are somehow nonpartisan: “Just as previous generations of offline activists at various stages in their careers assumed different roles — those of activist, journalist, even officeholder — bloggers must realize that they cannot avail themselves to the rights and privileges of journalists in any election in which they choose to participate as a partisan activist.”

But while “journalist” is sometimes used to refer to people who are (ostensibly) nonpartisan and impartial, neither the federal election law media exception nor the anonymous source privilege is so limited. Federal election law exempts from various regulations and prohibitions “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication.” Both nonpartisan news stories and opinionated editorials (including ones that endorse candidates) are protected. Both newspapers that strive to maintain maximum objectivity and magazines that overtly and consistently advocate a particular ideology are protected. Likewise, privileges to conceal the names of anonymous sources don’t turn on whether the claimant writes opinionated pieces or objective ones.

Bloggers are indeed much like journalists, though we tend to be more like journalists who provide opinion and analysis, rather than those who purport to provide just the facts. But more importantly for legal purposes, we are members of the media, the analogs of opinion magazines, even if not exactly of daily newspapers.

To claim that certain bloggers aren’t entitled to the same legal rights as journalists because they are “partisan activists” is a mistake. Journalists’ rights do not turn on their being nonpartisan — writers for The Nation and National Review are as protected as the most studiously apolitical of journalist. And bloggers, whether partisan or not, should likewise be entitled to the same protections.