Comments on: Freedom of the press is great if you own one*

By: Andrew

Andrew — Wed, 29 Jun 2005 13:32:28 +0000

A couple of things:

First, I think that the original post is misleading about the NYT story. Said story includes the following quote from a law school dean: “The rise of the Internet and blogger culture may have contributed…” But the NYT story isn’t as focused on blogging as the post makes it sound.

Second, my impression of the bloggers/journalists debate is that the current of “Bloggers have no special protection, so why should journalists?” is getting stronger. I myself am more in sympathy with the current of “Journalists can protect their sources, and bloggers should also be able to.”

I should add this this is the unscientific impression someone who is neither a lawyer nor a journalist (but who is a blogger).

By: Seth Finkelstein

Seth Finkelstein — Tue, 28 Jun 2005 18:55:12 +0000

My sense is that this issue is one where the analysis and discussion is driven more by what people want to talk about – the sexy “BLOGGERS VS. JOURNALISTS!”, rather than the actual law involved.

The “press” privilege is quite limited, but people think it’s far more extensive than it is. Some recent cases have pushed this distinction into the public mind. But it doesn’t have much to do with bloggers per se. There’s an issue in that some of these decisions will have a sentence or two which say “Look, if anyone could get out of testifying by claiming to be “press”, then everyone would claim that, especially these days – so that can’t be true” – which is then immediately shouted as “BLOGGERS VS JOURNALISTS!”.

The problem, as has been touched on above, is a very nuanced issue of when people can be compelled to testify.

Disclaimer: I am not a lawyer.

By: bryan

bryan — Tue, 28 Jun 2005 18:43:03 +0000

If there were such a thing as natural rights, which I believe there may well be, then perhaps one likely such right is the right not to divulge what was said to one in confidentiality.
Thus a reporter would have the same right as a blogger or as a lawyer.

By: Jayanne

Jayanne — Tue, 28 Jun 2005 17:35:16 +0000

C6,”Well, fortunately for us all, the Supreme Court has disagreed with you,”

Not really (I know you’re a lawyer), the Court’s “found”/invented a right of privacy. I wish they’d ruled the same way in Griswold etc. but on different grounds (Harlan’s, say).

C7 (after 2) “I don’t think we need to get into a huge privacy jurisprudence discussion on the issue when there is a perfectly on-point Constitutional right which as Joel points applies to all citizens”

I find this interesting. I’d always assumed—without thinking too much about it—that “the press” meant “the established media”. But I see it can’t. (Thank you both.) And here I find a statement to that effect:

http://www.law.cornell.edu/topics/first_amendment.html

By: Sebastian Holsclaw

Sebastian Holsclaw — Tue, 28 Jun 2005 17:03:03 +0000

I don’t think we need to get into a huge privacy jurisprudence discussion on the issue when there is a perfectly on-point Constitutional right which as Joel points applies to all citizens and not just mainstream-media reporters.

By: rea

rea — Tue, 28 Jun 2005 16:19:45 +0000

“the Constitution does not guarantee anything like a ‘right to privacy in general.’”

Well, fortunately for us all, the Supreme Court has disagreed with you, in a line of decisions dating back to the 50’s . . .

The constitution provides for an island of governmental powers in a sea of rights, not an island of rights in a sea of governmental power.

By: bi

bi — Tue, 28 Jun 2005 15:30:06 +0000

Hey Williscroft, what are the passwords to all your computer accounts?

By: jjoats

jjoats — Tue, 28 Jun 2005 15:20:10 +0000

Other Costitutional TOON O’THE DAY fodder Kentucky Constitution Solution

By: Jason G. Williscroft

Jason G. Williscroft — Tue, 28 Jun 2005 13:23:00 +0000

“If constitutional limits are to be imposed on such questioning, it may be better to derive them from the right to privacy in general rather than the specific claims of the press.”

I’m interested in how you propose to conduct this derivation, since the Constitution does not guarantee anything like a “right to privacy in general.”

By: joel turnipseed

joel turnipseed — Tue, 28 Jun 2005 13:15:51 +0000

I hesitate to sound like a reactionary Bork-ian originalist, but isn’t the referent of the first amendment’s “press” the object (and associated act of using it) and not the institution? I can understand the reason why journalistic privilege is covered under 1st amendment (breach would be de facto censorship), but couldn’t a blogger present a pretty good case that their sources are just as confidential as a journalist’s on the same lines—and that their freedom to “print” is just as sacred (after all, the “press” in 1791 was more like blogging than the corporate MSM)? I guess I’m not sure what the blog angle is here… I think it’s just an historical coincidence that we’ve associated the law with the institutions—from my understanding of the Constitution, a breaches of any citizen’s ability to print is a breach of the 1st amendment, no? Help me out here constitutional lawyers…

By: rea

rea — Tue, 28 Jun 2005 12:47:41 +0000

Really, the case is awful one in which to argue for reporter confidentiality. Cooper and Miller essentially witnessed a crime in progress—why can’t they be made to testify about it like everyone else?

Lawyers, doctors, and priests all traditionaly have the type of privilege to which the reporters aspire (well, actually, all these privileges belong to the source/client/patient). None of the privileges go as far as the one the reprters are now claiming.

I’m a lawyer. If a client confesses a past crime to me, I’ll never tell, and I can’t legally be made to tell. If a client tells me about a crime in progress, though, or a future crime, or asks me to give him legal advce that will help him commit a crime—well, that’s not confidential at all.
Why should any hypothetical reproter privilege work differently?