“Blogeteers”: What are the protections for web journalists?

The year was 1776 and discontent under British rule had driven the American colonies to the brink of revolution. In the midst of it all, an anonymous political pamphlet captured the rising revolutionary sentiment in a rousing cry for independence that blazed the trail for popular support of the revolutionary movement. With the dissemination of pamphlets like “Common Sense,” written in plain language that spoke to the common people of America, Thomas Paine and other everyday citizens were given a voice in the marketplace of ideas.

In the intervening years, “freedom of the press” has shifted away from the average citizen into the hands of the powerful, and sometimes elitist, mainstream media. Yet with the advent of the Internet and the relative ease of publishing within the blogosphere, writer citizens like the pamphleteers of yesteryear have harnessed the tools to make their voices known and in doing so, are transforming the way journalism is practiced today. As with any new medium of communication, blogging raises compelling legal questions in how journalism is defined, the applicability of media law in the blogosphere and whether bloggers qualify as journalists for the purposes of a federal shield law and other journalistic privileges.

Once the obscure hobby of angst-ridden teenagers and pajama-clad, basement dwellers spewing opinion, blogging has evolved into a diverse and creative web phenomenon with millions of “blogeteers” contributing daily to the virtual marketplace of ideas. By 2004, blogging had come to be regarded as a mainstream web activity, so much so that the Merriam-Webster online dictionary afforded blogWord of the Year.” Much of blogging’s appeal lies in its accessibility, with software such as WordPress, Live Journal and Xanga automating much of the HTML coding needed for Web publication. Though one writer has deemed blogs, “something [we] can no more easily define than a Rorschach splotch,” most are united by an underlying style and function (Hendrickson 188). Among these defining characteristics are the reverse chronological order of postings, unfiltered content, space for reader comments and the presence of hyperlinks to other websites. Another essential element of blog writing is the individual’s unedited voice, adopting either a flip, informal style or a more serious tone, but always boasting the “rare combination of spontaneity and solidity, of dash and detail, of casualness and care” that George Orwell lauded in his appraisal of pamphlets half a century prior to the advent of the blog.

Though the natural advantage of newsgathering and production remains with traditional news organizations, blogs have the advantage of speed and an abundance of tips courtesy of open-source information sharing. Where some blogs provide valuable eyewitness accounts in events like the September 11th attacks and the tsunami in Sri Lanka, others scoop the mainstream media, think “Rathergate.” Following Dan Rather’s CBS broadcast accusing former President George Bush of shirking his National Guard duties, three amateur journalists at the Powerline.com blog were primarily responsible for discrediting the documents used to support the allegations. Though this willingness to venture where traditional media hesitate to journey constitutes a large part of blogs’ allure, rampant anonymity and lack of accountability on the web are indicative of irresponsibility when it comes to accurately reporting information and hinder the growing movement to establish blogging as a form of journalism.

So, are bloggers journalists? The best answer seems to be yes, they can be, sometimes. In his media blog, “PressThink” Jay Rosen, NYU Journalism professor, refers to the press as the public service franchise in journalism and notes that with its shift in social location, the argument of whether bloggers are journalists has lost its footing. “Much of it is still based in The Media (a business) and will be for some time, but some is in nonprofits, and some of the franchise (“the press”) is now in public hands because of the Web, the weblog and other forms of citizen media.” Jim Brady, executive editor of Washingtonpost.com, echoes this sentiment in Mark Glaser’s Mediashift piece, “I think the argument about bloggers vs. journalists has been over for years. We’ve all co-existed just fine for a while now, and the truth is, the distinction is less relevant every day. There are thousands of journalists who now blog, and there are lots of bloggers who are trained journalists.” Though these affirmations are accurate, the fact remains that defining who qualifies as a journalist has serious implications in media law, most importantly who shall be protected in shield laws.

Branzburg v. Hayes 1972

Supreme Court acknowledged difficulty of determining who constitutes a journalist in the context of a debate over reportorial privilege, ultimately concluding that the First Amendment was an invalid defense for journalists summoned to testify before a grand jury. Writing for the majority, Justice Byron White noted that the administration of a constitutional reportorial privilege would present, “practical and conceptual difficulties of a high order,” namely the “questionable procedure” of defining those categories of newsmen who qualified for the privilege despite traditional doctrine that, “liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

Shield Laws

Laws that specifically protect media, such as Alabama’s reference to newspapers, radio and television stations, do not cover blog material. On the other hand, laws with expansive terms, such as Nebraska’s reference to “any medium of communication,” do in fact extend to bloggers and other web journalists. However, the majority of state laws fall between these two extremes and determining whether the phrasing is sufficiently ambiguous and expansive to protect web journalists is something bloggers must deal with on a daily basis. Journalists of all stripes depend on the confidentiality of sources and unpublished information to acquire news content and communicate it to the public. Therefore, bloggers that perform the same function as journalists yet are left unprotected poses a threat to the free flow of information in the blogosphere.

Apple v. Does

The California Court of Appeals for the Sixth Appellate District recently ruled in Apple Computer, Inc. v. Does that the state’s shield law did in fact cover a website editor who published news about Apple computer products. Under California shield law, journalists are protected from being held in contempt for refusing to disclose confidential sources and although the appellate court easily concluded O’Grady was in fact an editor/reporter engaged in the dissemination of news, the more difficult question was whether the shield law’s protection for journalists applied to PowerPage. Ultimately, the court found that PowerPage was not a newspaper but an online magazine or “e-zine” which are “highly analogous to printed publications…and differ from traditional periodicals only in their tendency, which flows directly from the technology they employ, to continuously update their content” (Apple).

Josh Wolf

Video blogger jailed for 226 days (setting the record for an American journalist held in contempt of court) for refusing to turn over unpublished video footage of a 2005 clash between anti-G8 demonstrators and San Francisco police. Released only after negotiating with prosecutors and handing over the video.


In the absence of a clearly defined constitutional protection for journalists and bloggers alike, it can become a guessing game to figure out whether statutes apply to the disclosure of sources, notes and information. there was fear that negotiations would eventually leave citizen journalists and bloggers unprotected. In my opinion, bloggers should benefit from any privilege that extends to journalists because otherwise, the courts would have to decide on a case-by-case basis by looking at professional credentials and experience. Take for example the case of Vanessa Leggett, who spent five months in jail after refusing to turn over her notes because she was a “virtually unpublished freelance writer.” Rather than viewing web journalists as competition, the mainstream media should recognize blogs as valuable adjuncts to quality journalism.

Though the blogosphere poses challenges to the application of media law, journalists and bloggers alike should work together to formulate a federal shield law that will protect freedom of speech for all.


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