Introduction

One of the most popular uses of blogs has been to report on local and national stories.  Whether a student blog that focuses on day-to-day life in a small town, or a internationally-renowned expert commenting on world affairs, many personal bloggers are taking on the role of journalists.  By the same token, many well-known journalists have begun to blog under the aegis of their off-line institutions.  A third group of bloggers have abandoned the traditional media and entirely and investigate, prepare, and publish stories through a blog.  In each case, bloggers are acting as journalists and the laws governing journalism play a crucial role in protecting the expression of this new medium.

Are Bloggers Journalists?

The question of whether bloggers are journalists has been asked by many and has serious implications for bloggers seeking the legal protections that have traditionally been used by journalists.  The answer, as is often the case in law, is it depends.  As Chief Justice Hughes wrote almost seventy years ago in Lovell v. Griffin, "the press. . . comprehends every sort of publication which affords a vehicle of information and opinion."  The key issue is not whether or not a blog can be part of the "press" but whether a particular blogger is acting as a journalist in a given portion of their blog.  If a blogger is acting like a journalist and doing the sort of investigation or reporting that a journalist does, that blogger is a journalist.  As such, a personal blog may be engaged in journalistic activity all of the time, never, or there may be a case where part of a blog is journalism and another section is not.  If a blogger wants access to information, to protect a source, or to do anything else that involves investigating or reporting on the world around them, they would be well-served to explore the protections discussed in this section.

i. Definition and Application to Bloggers

The "Journalist's Privilege" described and delineated in Justice Stewart and White's Branzburg v. Hayes, 408 U.S. 665 (1972) dissent, protects a journalist's right to not reveal the identity of confidential sources and unpublished information. 

As noted above, a blogger's role as a “journalist” is a function of behavior, not medium.  If you have information from a whistle-blower at their work, from a witness who fears police retribution, or want to collect anonymous opinions about local news, you may have a right to assert privilege.


Examples:

a) Political blogger Matt Drudge who broke significant aspects of the Clinton-Lewinsky scandal at his blog The Drudge Report might claim a privilege against revealing the identity of his informant for fear of government reprisals.

b) A collection of more than 80 bloggers who call themselves the "Bear Flag League" have written an amicus brief arguing for the privilege in the case of Apple v. Does.  An anonymous blogger leaked trade secrets from Apple and the computer company is seeking the name of the blogger. 

c) Law students have started a blog where other students can post reviews and criticism of their law professors at "Classroom Justice"  They might claim the privilege if the school demanded the identities of the student who left a specific comment.




ii. Test and Qualified Privilege

The U.S. Supreme Court has refused to apply a blanket federal privilege.  However, the majority of the states have adopted this protection, generally based on the dissenting opinions in Branzburg.  The specifics of the privilege vary from state to state, but almost every law uses a test that evaluates: a) whether that person intended to disseminate information to the public, and b) whether that intent existed at the inception of the newsgathering process

The privilege may be defeated or only applied in part where the party (generally the state) can show extenuating circumstances.  Where some protection remains, but some information may also be provided the journalist is sais to have a "Qualified Privilege." 

A qualified privilege exists where the subpoenaing party can show:

a) that the material is unavailable despite exhaustion of all reasonable alternative sources,

b) that there is a compelling and overriding interest in obtaining the information, and

c) that it is clearly relevant to an important issue in the case.




iii. State Laws

Beyond these commonalities, there is significant diversity among the 30 states that provide additional protection under their own constitutions.

For a look at the specific reporter's privilege laws in your state see the Reporter's Committee for Freedom of the Press 

i. General First Amendment Protection and Bloggers

In some ways the right of access is the other side of the coin from privilege.  Under existing law there is no general right for journalists to access information, but a number of cases have given the press special rights to act as the "eyes and ears" of the people.  As such, there is a First Amendment right to newsgathering  as a corollary to the right of Freedom of the Press and many specific cases and statutes carving out special protections for the press in their role of providing information to the nation as a whole.

In this context it is clear that bloggers are considered members of the press.  There have been many cases where bloggers have been given press passes to state and federal press conferences.  Indeed, the Periodical Corespondent's  Association, which sets the standard for access  has specifically adopted standards that include  online journalists.


 

ii. Access to Courts

Because the Sixth Amendment guarantees a "speedy and public trial", the right of the people, and press as their representatives is fairly clear.  There are some distinctions made based on the type of trial.

The media, including bloggers, are guaranteed general access to criminal trials by Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) and its progeny.

Similarly, access to pre-trial proceedings is also guaranteed by Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1986). 

Courts use a two-part "history and logic" test to determine if access will be granted to a specific proceeding:

a) whether the place and process have been historically open to the press and the general public

b) whether public access plays a significant positive role  in the functioning of the particular process in question


Today the issue of access to civil trials is still unsettled. Several courts have held in cases such as Publicker v. Cohen, 733 F.2d 1059 (3rd Cir. 1984) that civil trials should also be open, but many defendants argue that their fair trial rights are violated by excess publicity. 


 

iii. Access to Public Meetings and Records


Access to public meetings and records is a much clearer area of the law.  In each case federal statutes spell out exactly when access will or will not be permitted.


a) Documents: 5 U.S.C. § 552(a) The Freedom of Information Act (FOIA)
Provides procedure to gain access to most non-classified public information.
For an overview of how to file a FOIA request  see the Reporter's Committee for Freedom of Information
FOIA requests can be filed using this form


b) a) Meetings: 5 U.S.C. § 552(b) The “Sunshine Act”
Requires open meetings unless a public decision is made that specified information would be wrongly disclosed.

i. Introduction

A tremendous number of blogs are devoted to discussion of politics.  Conservate bloggers made up much of the intial push into the "blogosphere" including the Drudge Report which helped to expose the Monica Lewinsky scandal and modern blogs such as Power Line which helped expose Dan Rather and CBS's inaccurate story on President Bush's service in the national guard.  Liberal bloggerss such as Wonkette and Tom Tomorrow have struck back, adding a left-leaning voice to the burgening marketplace of ideas.

Even at UNC, this debate between political bloggers has been heating up.  A conservative group of UNC law students called The Right Flank published an issue in March of 2006 and within days a liberal blogger had picked up the torch and responded in kind at Liberal 1L  The entire debate was captured and discussed at UNC law professor Eric Muller's well-known blog.

However, while all of this political discussion seems to fit within the heart of the First Amendment's right to freedom of speech and the press, serious concerns exist as to the viability of such discussion under current campaign finance laws.  Bloggers of every political stripe advocate for specific candidates and most also accept donation or sell items to members of their political party.  As such, an open question exists as to whether or not federal limits on campaign spending applied to bloggers.



ii. The Old FEC Rules
The Bipartisan Campaign Reform Act of 2002 exempted on-line activity such as blogs from campaign finance reform constraints as part of "public communications" and "generic campaign activity" exceptions.


 
iii. Potential New Rules

In 2005 the DC Federal District Court in Shayes v. FEC, 414 F.3d 76 (D.C. Cir. 2005) held that these exemptions were in conflict with the larger Federal Elections Campaign Act.  Many feared that this ruling would expose blogs to campaign finance constraints.  However in a case decided on March 27, 2006 the FEC ruled that the new restrictions apply only to paid activity on third-party sites.  FEC Chairman Michael Toner announced that under the new laws "there will be no second class citizens among members of the media" and that bloggers will have full rights to discuss politics free of this regulatory restraint.

This section of the Communications Decency Act, provides special protection for bloggers and for their ISP's.


i. 47 U.S.C. § 203

Provides that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."


This is a powerful shield for bloggers who might otherwise be subject to legal repercussion for comments on their blog and for ISP’s that might otherwise be subject for the actions of individual bloggers.

Applies even where blogger edits comments.  However, the law is unsettled on how much editing is acceptable.   The general rule seems to be that cosmetic editing or abbreviation will not void sec. 203 protection.  However, transformative changes that substantively alter the meaning or tone may void 203 protection.


 
ii. Limitations

Section 203 's protections provide a great deal of breathing room for bloggers.  However, the statute also exempts several areas of law from those protections.  A blogger seeing to defend themselves from liability must be careful that their conduct does not fit within one of the specific exceptions.

Section 203 protections do not apply to:

a) Federal Criminal Law

b) Intellectual Property

c) Privacy Law


It has been established that section 203 does apply to:

a) Defamation

b) Breach of Contract

c) Violations of Federal Civil Rights

d) Infliction of Emotional Distress

e) Several other areas including protecting a library from being held liable for misuse of public funds, nuisance, and premises liability for providing computers allowing access to pornography.

 

iii. Key cases

Section 203 is a relatively new rule and judicial explication of the limits of its protection has just begun.  However, several significant cases have been handed down that have begun to tease out how it will be applied.


a) Zeran v. AOL - Conduct before sec. 203 was passed does not qualify for the protection since there was no reliance.

b) Batzel v. Smith -  Reproduction of an email from a third party who did not intend to publish was given immunity from defamation suit.

c) Blumenthal v. Drudge -  AOL not liable under sec. 203 for Drudge's defamatory comments on blog

For more cases see the Electronic Frontier Foundation's web page