October 15, 2004

JEFF JARVIS ASKS: "Would you go to jail for your weblog?" Of course, another way of putting it is, "should your weblog keep you out of jail?" That is, if you do things that would otherwise get you sent to jail -- like violating a subpoena -- does the fact that you're a journalist get you off the hook? The Constitution doesn't say that.

I found the Vanessa Leggett case troubling because the Justice Department seemed anxious to keep her from publishing -- they wanted all her notes, manuscripts, etc., not just copies, and they wouldn't let her keep copies. But as I wrote in a Wall Street Journal piece back then, the Justice Department's problem was as much in trying to draw lines regarding who was a journalist and who wasn't:

Contrary to frequent assertions from professional journalists, there is no special First Amendment protection for members of the press. Such protections, to the extent they exist at all, exist only as a matter of statutory or regulatory grace. Under the First Amendment, everyone enjoys the same protection as "professional journalists." Ms. Leggett probably had First Amendment grounds for refusing to turn over all of her notes, but not for refusing to testify to a grand jury, and not for refusing to make her notes available for copying (rather than seizure). Her refusal to testify may make her a heroine to journalists, but it does not make her a First Amendment heroine.

The Justice Department's behavior was thus doubly odd. The first oddity was requesting her material in such a way as to block work on her book. The second oddity was making an argument based on her status as a nonjournalist. As a matter of internal policy, the Justice Department often avoids asking journalists to identify their sources, but that has nothing to do with the First Amendment.

If you think that journalists -- which I would interpret as anyone doing journalism, but be aware that others may differ -- deserve the kind of privilege that they often claim, then support legislation that grants it. I don't think that legislation would pass, though, because I don't think that most people really believe that it's justified.