Bloggers' Privilege
February 02, 2005
In this article, Professor Randy Bezanson (Law, Iowa) argues that size does matter, at least when we're asking whether bloggers should be considered journalists for privilege purposes.
Ultimately, the issue comes down to whether bloggers act like traditional journalists, says University of Iowa law professor and First Amendment specialist Randall Bezanson. Simply expressing opinions to a tiny audience doesn't count, he says. If so, "then I'm a journalist when I write a letter to my mother reporting on what I'm doing. I don't think the [constitutional] free-press clause was intended to extend its protections to letters to mothers from sons."
I have to believe that Professor Bezanson was quoted out of context. Is his argument really that the size of the audience should dicate whether privilege attaches? If so, we're all in a lot of trouble.
Bashman's How Appealing is the most widely-read pure law blog. (I realize The Volokh Conspiracy gets more visitors, but they have a law/politics flavor). But Bashman "only" gets 3,000 to 4,000 visitors a day (and that number includes random googlers who reach his site and promptly leave, and people who check in his site two or more times a day and thus are double or triple-counted). On the other hand, the National Enquirer has a circulation of nearly 3 million copies. Probably the second most-read-blog would be Professor Berman's Sentencing Law & Policy, which comes in with - again "only" - 3,000 visitors a day.
Under Professor Bezanson's argument, no legal blogger should be able to claim journalists' privilege, since none of us have the (comparatively) large audience of mainstream media outlets. Does this mean that Professor Berman, if asked in court, should be required to tell the government who sent him the famous DOJ memo? But a columnist from the National Enquirer should be entitled to claim privilege? Does it mean that dirt dealers from E! deserve more protection than Howard Bashman? Outrageous.
It's odd that free speech proponents tell us not to analyze the content of speech (that would be censorship), while also demanding we look to the circulation of speech. Or maybe bloggers just aren't worthy of the protection we would give to writers of the Weekly World News.
(Story via Professor Yin).