Saturday, February 19, 2005

Freedom of the Press, Journalists and Bloggers

The United States Court of Appeals for the District of Columbia Circuit has issued its February 15, 2005 decision in IN RE: GRAND JURY SUBPOENA, JUDITH MILLER, the Plame CIA leak case involving a claim of reporter's privilege under the First Amendment:

The Honorable David B. Sentelle, Circuit Judge, U.S. Court of Appeals for the D.C. Circuit, wrote the majority opinion, inter alia, as follows:

"An investigative reporter for the New York Times; the White House correspondent for the weekly news magazine Time; and Time, Inc., the publisher of Time, appeal from orders of the District Court for the District of Columbia finding all three appellants in civil contempt for refusing to give evidence in response to grand jury subpoenas served by Special Counsel Patrick J. Fitzgerald. Appellants assert that the information concealed by them, specifically the identity of confidential sources, is protected by a reporter’s privilege arising from the First Amendment, or failing that, by federal common law privilege. The District Court held that neither the First Amendment nor the federal common law provides protection for journalists’ confidential sources in the context of a grand jury investigation. For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court. We further conclude that other assignments of error raised by appellants are without merit. We therefore affirm the decision of the District Court."

Interesting is what Judge Sentelle writes as obiter dictum about blogs in this regard in his concurring opinion (which treats the common law issue differently than in the majority opinion, which he also authored, but in which the other two judges did not concur on Sentelle's view of the law on this particular issue, leading him to write a concurring opinion for his own majority opinion - a rarity in judicial opinion-writing):

I base my rejection of the common law privilege theory on foundations of precedent, policy, and separation of powers.

As to precedent, I find
Branzburg v. Hayes, 408 U.S. 665 (1972), to be as dispositive of the question of common law privilege as it is of a First Amendment privilege....

The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it

'necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'" 408 U.S. at 704.

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)).

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?"

The reasoning of the court follows the basic arguments we already outlined previously in LawPundit on this particular case prior to its decision.

Of course, based on Judge Sentelle's reasoning, whatever applies to professional journalists also applies to bloggers.

See other postings on this matter at:

Appellate Law & Practice

Buzz Marketing with Blogs

Ex Parte

JurisPundit

UK Future

PoynterOnline

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