Should Bloggers Get the Reporter's Privilege?

Jonathan Glater's article in today's New York Times quotes me for the proposition that the reporter's privilege (the right, in some jurisdictions, to keep sources secret) should be extended to bloggers using a functional test. That is, a court should ask whether the blogger regularly gathers news, interviews sources, and produces content in roughly the same way that print and television reporters do. That would mean that a very large number of bloggers-- probably most-- would not enjoy the reporter's privilege. To enjoy the privilege the blogger would have to make some showing that they were functionally similar to reporters. The best evidence of this, however, would be relatively easy to provide-- it would be the blog itself.

There are several tricky problems with using a functional test. The first is that what print and television reporters do is changing. For example, many people at large newspapers do virtually no interviewing of live sources at all-- rather they engage in data collection, web searching and library research, which makes them very little different from a blogger who researches the posts he or she writes. The second problem is what to do with people like myself who basically write op-eds in the form of blog posts. In the Times article I argue that I am functionally like someone like Anthony Lewis (not in terms of quality of course-- Lewis was and is much better at his craft than I will ever be). But if bloggers who write opinion pieces are functionally similar to newspaper columnists, and if newspaper columnists enjoy the reporters privilege, then a wide range of political bloggers should get the privilege. Third, some bloggers may not fall into any category. Their blogs may contain a variety of different content, some of which is functionally similar to what print reporters do, and some of which is quite different.

The functional test has two goals. The first goal is to separate the mode of distribution from the nature of the task. Not all bloggers do the same sorts of things, even if they all use the same distribution software; conversely, some bloggers are very much like traditional journalists even though they use a different method of distribution. The second goal is to recognize the ways in which the work of journalists and the work of bloggers are starting to merge, so that in ten years it will be very difficult to tell the two apart. In such a world, it makes little sense to restrict the reporter's privilege to people who work for traditional newspapers. Indeed, within the decade many traditional newspapers may have converted to primarily online delivery (or delivery through cell phones or personal digital assistants).