Bloggers as Newsmen: Expanding the Testimonial Privilege

Posted: 24 Oct 2008

Date Written: October 1, 2008

Abstract

The prevalence and influence of Internet users and bloggers has risen exponentially in recent years,1 even to the extent that "citizen journalism" can cause the downfall of a prominent and respected network news anchor. In the flurry of "Memogate," anonymous bloggers, unaffiliated with traditional news media organizations, called into question the credibility of the documents Dan Rather revealed in a CBS News broadcast. When the bloggers' reporting resulted in Rather's resignation, they were dubbed "the Woodward and Bernstein of Rathergate." At a time when an individual sitting in front of a computer can wield enormous political and social influence through his or her journalistic efforts, the traditional concept of what constitutes a journalist or a member of the news media should change. Today, citizens can disseminate news to the public themselves, regardless of their professions, resources or training. The traditional top-down system of the news media and the age of the nightly network news broadcast has transformed into a system of bottom-up newsgathering. Under this system, everyone, "regardless of who they are, why they write or how popular they are," can become a journalist. The increased ease of reporting associated with advancing technology, however, complicates the legal questions surrounding the First Amendment freedom of the press, the logistics of newsgathering, and the state testimonial protections for reporters. This Note argues the federal government should create a testimonial privilege for newsmen, either by statute or common law. This "reporter's privilege," consistently claimed by reporters and rejected by common law courts, is essential to an efficient and effective free press. This is especially true in light of the traditional role of the press as the "Fourth Estate": a fourth branch in the system of government checks and balances. This Note examines the complexities of the reporter's privilege and how it has been interpreted in the context of advancing technology. Part I examines the history of the debate behind the reporter's privilege, stemming from the newspapers. Part II explores the question of privacy and its unique application to the anonymity that the Internet provides to bloggers and online newsmen. Part III discusses the legal questions surrounding blogs more specifically, including the courts' current rulings that relate to Internet speech and newsgathering. In Part IV, this Note argues that bloggers should be considered journalists, and calls for a federal shield statute that protects all newsmen from compelled testimony in response to a subpoena. The proposed statute would apply regardless of the medium these reporters employed in the dissemination of news. It further proposes that the criteria for determining who qualifies for the federal privilege should be based on the product an individual produces, rather than professional affiliation or chosen medium. Yet, to address the interests of the justice system and of civil plaintiffs, this Note proposes an exception to the grant of privilege for misprision of felony, an additional statutory protection for whistle blowers, and a balancing test to accommodate the differing priorities of parties to a civil claim.

Suggested Citation

Macrander, Anne M., Bloggers as Newsmen: Expanding the Testimonial Privilege (October 1, 2008). Boston University Law Review, October 2008, Available at SSRN: https://ssrn.com/abstract=1288159

Anne M. Macrander (Contact Author)

affiliation not provided to SSRN ( email )

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