One of the most popular uses of
blogs has been
to report on local and national stories. Whether a
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
same token, many well-known journalists have begun to blog under the
aegis of their off-line institutions. A third group of
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
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,
it depends. As Chief Justice Hughes wrote almost seventy
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
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.
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.
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and unpublished information.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”
function of behavior, not medium. If you have information
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.
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
and Qualified Privilege
The U.S. Supreme Court has refused to apply a blanket federal
privilege. However, the majority of the states have adopted
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.
some protection remains, but some information may also be provided the
journalist is sais to have a "Qualified Privilege."
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
c) that it is clearly relevant to an important issue in the case.
Beyond these commonalities, there is significant diversity among the 30
states that provide additional protection under their own
For a look at the specific reporter's privilege laws in your state see
Committee for Freedom of the Press
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
As such, there is a First Amendment right to newsgathering as
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
press passes to state and federal press conferences. Indeed,
Periodical Corespondent's Association, which sets the
for access has specifically adopted standards that
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
The media, including bloggers, are guaranteed general access to
criminal trials by Richmond
Newspapers v. Virginia, 448 U.S. 555 (1980) and its
Similarly, access to pre-trial proceedings is also guaranteed by Press-Enterprise Co. v. Superior
Court, 464 U.S. 501 (1986).
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
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
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
will or will not be permitted.
5 U.S.C. § 552(a) The Freedom of Information Act (FOIA)
Provides procedure to gain access to most non-classified public
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.
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
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
stripe advocate for specific candidates and most also accept donation
or sell items to members of their political party. As such,
open question exists as to whether or not federal limits on campaign
spending applied to bloggers.
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.
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
ruled that the new restrictions apply only to paid activity on
third-party sites. FEC Chairman Michael Toner
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.
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
that might otherwise be subject for the actions of individual bloggers.
Applies even where blogger edits comments. However, the law
unsettled on how much editing is acceptable. The
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
Section 203 's protections provide a great deal of breathing room for
bloggers. However, the statute also exempts several areas of
from those protections. A blogger seeing to defend themselves
liability must be careful that their conduct does not fit within one of
the specific exceptions.
203 protections do not apply to:
a) Federal Criminal Law
b) Intellectual Property
c) Privacy Law
been established that section 203 does apply to:
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.
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