Instapundit.com Instapundit.com

December 06, 2004

FLOYD ABRAMS EXPLAINS WHY HE SHOULD LOSE:

The crux of the reporters’ contention is that the public would be less well informed if journalists could not promise their sources confidentiality. However, the proliferation of blogs and bloggers could represent the Achilles’ heel in this approach. If Ms. Miller and Mr. Cooper are entitled to claim special treatment in the courts, so too could hundreds of thousands of Americans who use the Internet to post comments about their views on current events.

“They’ll say anybody with a modem and a computer is a ‘journalist,’” said a professor of media ethics and law at the University of Minnesota, Jane Kirtley. “No court is going to be comfortable with that sort of wholesale privilege.”

Ms. Miller’s attorney, Floyd Abrams, said he is bracing for questions from the court about the perils of granting legal protection to the burgeoning ranks of bloggers.

“There’s no doubt that’s the potentially dangerous aspect of it,” Mr. Abrams said in a telephone interview from his Manhattan office yesterday. “If everybody’s entitled to the privilege, nobody will get it.”

Mr. Abrams said he thinks many bloggers should be entitled to the same kind of protection he is seeking for his client and other traditional journalists. “I think a blogger who communicates with and tries to communicate with thousands of people is not less deserving than a journalist who may communicate with a smaller audience through a small-town newspaper,” the attorney said. “There should be protection so long as information was obtained for the purpose of dissemination to the public at large in some sort of analogous way to what ‘journalists’ do.”

He almost hits on the right answer here, except for the audience size. Does this mean that we should look at our Sitemeter counters before deciding whether we get First Amendment protection?

The notion of journalism as a profession, with a guild and special privileges, was always a weak one. It's now much more obvious just how weak it is. And Abrams seems to have figured it out:

It is widely expected that the current dispute, involving Ms. Miller and Mr. Cooper, could end up before the Supreme Court. Mr. Abrams said that given the sentiments of some justices, traditional journalists could actually benefit from being lumped in with the bloggers.

“For some courts and some members of the public, the image of journalist as romantic hero had faded, but the notion of bloggers on duty to catch Dan Rather has not,” Mr. Abrams said. He said he may argue that turning aside the privilege would actually be as much as a blow to bloggers as to mainstream reporters.

“A number of members of the Supreme Court who are very hostile to the notion of special press privileges might at least take a second look at the issue. We’re not talking about a pressonly privilege,” Mr. Abrams said.

A privilege for journalism is fine, though the argument for protecting the confidentiality of sources against legal process has always seemed weak and self-serving to me. But a privilege for approved "journalists" is not. Here's a piece I wrote on the Vanessa Leggett case, which is also mentioned in the article above, a couple of years ago in the Wall Street Journal.

Read this, too.