In 2005, New York Times reporter Judith Miller garnered national attention for her refusal to disclose the identity of her source outing Valerie Plame Wilson as an operative of the Central Intelligence Agency. The D.C. Circuit rejected Miller’s claim that the identity of the source was protected by a reporter’s privilege. Her refusal to comply with a grand jury subpoena meant she was in contempt of court, and she spent eighty-five days in jail as a result.[1]

While Miller’s case reignited the public debate of the merits of a reporter’s privilege, the current issue for state and federal courts is defining the scope of the reporter’s shield law. Generally, areporter’s shield law is a “statutory privilege which allows a news gatherer to decline to reveal sources of information”[2]  and newsgathering materials. Like the attorney/client and doctor/patient privileges, the reporter’s privilege attempts to foster the flow of information into public discussion.  The aim of the reporter’s privilege is to “increase the flow of information in circumstances in which society wishes to encourage open communication.”[3] The rationale for allowing nondisclosure about a reporter’s confidential source is based on the idea that forcing a reporter to reveal his source will cause  sources to communicate less openly with reporters as a result of  “fear of exposure” and will simultaneously cause “editors and critics to write with more restrained pens” due to “fear of accountability.”[4] The Second Circuit characterized the purpose of shield laws as the “public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters...”[5] To date, thirty-six states and the District of Columbia have enacted reporter shield laws codifying a reporter’s privilege,[6] though the scope of protection varies by state.  Congress has considered adopting a federal shield statute many times in the last forty years but has yet to pass the legislation.[7] Though in Branzburg v. Hayes the Supreme Court refused to recognize a special First Amendment privilege for journalists not to reveal their sources in the grand jury context,[8]  it remains unclear whether a reporter’s privilege exists in criminal and civil proceedings.

Most states define the shield law protection by referring to a reporter or traditional news gatherer based on employment with an established media entity.[9] Currently, many courts are grappling with the scope of reporter’s shield laws due to the difficulty of defining who qualifies as a reporter, which is because of the changing nature of journalism—including the rise of internet publication of news by citizen journalists. There is a growing concern on how to define “journalist” so that current, unemployed, or freelance journalists are covered by the shield laws while “pajama-clad bloggers” are not entitled to invoke such a privilege.[10] There must be some limitation on the scope of the privilege; a shield law cannot apply to anyone with the ability to publish a blog on the internet.  As renowned media attorney Floyd Abrams stated, “If everybody’s entitled to the privilege, nobody will get it.”[11] Congress should pass a shield law granting a qualified privilege to persons who gather and disseminate information to the public with a true intent to do so at the outset of the newsgathering process. 

If Congress were to draft a federal shield law, the main issue would be centered on how to define journalists. Implicit in that debate would be whether to include bloggers as persons covered by the privilege. Part I examines how state statutes have traditionally defined the privilege and how state courts have determined its scope. Part II analyzes the changing nature of journalism. Part III discusses the arguments in favor of and against including bloggers as journalists for shield law purposes, concluding that bloggers should qualify for protection. Part IV recommends how to appropriately tailor the privilege for citizen journalists publishing online. Part V weighs the costs and benefits of enacting a federal reporter’s shield law. Part VI recommends that Congress adopt a two-part test for a federal shield law for reporters that includes nontraditional journalists.

I.  Defining “Journalist”: Who is covered by Reporter’s Shield Laws

The struggle to define exactly who should be covered by reporter’s shield laws is not new.  Since state shield laws have existed since 1896, few shield laws explicitly include electronic news media. Courts have extended the scope of shield laws beyond only covering reporters working at newspapers to people working in magazines, radio, and television. Because many antiquated state shield laws define the privilege by medium, courts have decided whether publishing electronically meets the statutory definition. For example, California courts had to decide whether a website that conveyed confidential information about new Apple products was protected from divulging its sources by the shield law, which is codified in the state constitution.[12] The appellate court held the online publication constituted a “periodical publication” entitled to protection of the shield law because it published regularly.[13] States have amended their shield laws for advancing technologies of radio, television, and now the internet. Because the medium of communication is constantly changing, the medium of communication should not determine the scope of the privilege.

Instead of defining who qualifies to invoke the reporter’s privilege based upon a particular medium, some states embrace a definition of reporter based on the function of journalism. While some state statutes only provide the reporter’s privilege to persons employed by an established media entity, other states apply to any “person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination, or publication to the public.”[14] State legislatures have rightly extended the privilege to all persons who gather and disseminate news to the public rather than limiting protection to only professional journalists.

Some courts have also embraced an intent standard based upon the function of journalism. In von Bulow, the Second Circuit held the privilege only protected a person who has the intent to disseminate the information to the public at the inception of the newsgathering process.[15] In this case, Andrea Reynolds invoked the reporter’s shield law to cover an unpublished manuscript of a book based on the notes she took as a paralegal to Claus von Bulow, who was charged with murdering his wife. The court rejected the claim that Reynolds’ manuscript and notes were privileged since she had not indicia of a freelance author and did not demonstrate that her intent to use the materials to disseminate the information to the public existed at the beginning of the newsgathering process.[16] The court emphasized a person invoking a journalist’s privileged need not be “associated with the institutionalized press because the ‘informative function asserted by representatives of the organized press is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.’”[17] The privilege can be invoked by a novice, according to the Second Circuit; it is not limited to those who have a history of journalism, although “prior experience as a professional journalist may be persuasive evidence of present intent to gather for the purpose of dissemination.”[18]

Other courts have adopted the intent-based test when deciding whether a person protected by a journalist’s privilege. The First Circuit and the Ninth Circuit applied the von Bulow intent test when extending the privilege to a professor[19] and to a non-fiction writer of investigative books. [20] In determining whether the persons invoking the privilege were covered, both circuits analogized the function of an academic or of an author to the reporter’s role—the ultimate purposes are to aid investigative newsgathering. According to the Ninth Circuit: “[t]he journalist's privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public. Investigative book authors, like more conventional reporters, have historically played a vital role in bringing to light ‘newsworthy’ facts on topical and controversial matters of great public importance.”[21] Basing its decision on the intent-based inquiry, the First Circuit extended the privilege to academic researchers because they “too are information gatherers and disseminators. Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses.”[22]

State courts have also wrestled with whether a reporter’s privilege covers non-traditional journalists, including freelance writers,[23] authors,[24] documentary filmmakers,[25] academics,[26] and independent research consultants.[27] Hawaii is the only state to specifically include whether bloggers are protected by its shield law if certain conditions are met: “Non-traditional news gatherers, e.g., bloggers, are protected if (1) the individual invoking the privilege regularly participates in reporting or publishing news of significant public interest, (2) the person holds a position similar to a traditional journalist or newscaster, and (3) the public interest is served by extending the protection of the statute.” [28]

II.  Defining “Journalist”: The Changing Nature of Journalism

The Supreme’s Courts rejection of the press as the “fourth estate” of government in Branzburg was “remarkably (although unintentionally) prescient. As means of communication become more interactive and accessible to the public the ‘press’ of the twenty-first century is rapidly becoming more difficult to define.”[29]  Because of the advent and ubiquity of the Internet, more people are able to contribute to the public discourse. The number of people contributing their ideas and opinions on the Internet has grown exponentially, including the number of blogs and blog-readers. There were over 34.5 million blogs at last count.[30]

While blogs blur the line between online diaries and news reporting, the influence of blogs on the mainstream media and the public dialogue cannot be overemphasized. Matt Drudge, the author of the Drudge Report, is but one example of a person setting the trend of breaking news by blogging.  He does not consider himself a journalist, but his website was the first to break the story of President Clinton’s affair with Monica Lewinsky. His blog also was the first to report that presidential candidate Bob Dole chose Jack Kemp as his running mate in the 1996 election, as well as that CBS fired Connie Chung. Other examples of blogs leading the national discussion include: bloggers recognized Senator Trent Lott’s controversial comments at Strom Thurmond’s one-hundredth birthday celebration, which led Lott’s resignation as Senate Majority Leader; bloggers revealed Dan Rather’s documents about President George W. Bush’s National Guard service were forged;  bloggers uncovered James Frey fictionalized portions of his memoir and also exposed the contents of inappropriate emails sent to House pages by Representative Mark Foley.[31]

Moreover, mainstream media outlets are embracing the changing nature of technology by incorporating the citizen journalism into reporting. Many mainstream media companies support blogs, and many reporters have their own blogs.[32] Most every news website encourages readers to leave comments online, and many mainstream media websites provide links to surveys and responses as well.[33]  News organizations encourage members of the public to contribute content for publication by sharing photographs and stories of current events.  CNN promotes citizen journalism by asking viewers to submit pictures and videos of catastrophic weather events such as Hurricane Dennis.[34] Most recently, CNN encouraged people in Egypt to report on the uprisings in the country using Twitter, photographs, or videos.  CNN.com also created iReport, a section of its website “where people take part in the news with CNN. Your voice, together with other iReporters, helps shape how and what CNN covers every day.”[35]When one enters the site, the disclaimer pop-up on the browser declares: “So you know: iReport is the way people like you report the news. The stories in this section are not edited, fact-checked or screened before they post. Only ones marked 'CNN iReport' have been vetted by CNN.” [36]  As part of a conscious effort to increase its circulation numbers by capitalizing on the popularity of blogs, Gannett, which owns over eighty newspapers around the United States, announced in November 2006 it was preparing to use non-journalists to develop content for its publications.[37]

The nature journalism is evolving; in fact, the notion of an institutional press is diminishing, if not vanishing. The inclusion of citizens as reporters of the news changes the role the mainstream media plays in our democracy.

III.  Should Bloggers Be Included as Journalists?

The purpose of a reporter’s shield law indicates that citizen journalists should be able to invoke the privilege. By allowing bloggers who disseminate information to the public to invoke a privilege to keep sources confidential, the purpose of the privilege is served: “to encourage sources to come forward with information for public debate while, at the same time, preventing both professional and non-profession journalists from becoming agents of the government, criminal defendants, or civil litigants.”[38] The purpose of the First Amendment, and thus journalists, is to enhance democracy through open, free debate. Citizen journalists who publish their content for the general public should qualify for the privilege. Because bloggers serve the essential purpose of disseminating news to the public, Mr. Abrams thinks many should be able to invoke privilege of traditional publishers:“I think a blogger...is not less deserving than a journalist who may communicate with a smaller audience through a small-town newspaper.”[39]  According to the media attorney, “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.”[40]

In addition, Supreme Court precedent suggests bloggers should qualify for the privilege. Though at the time of Branzburg the Internet did not exist, the Court stated freedom of the press is “not confined to newspapers and periodicals” or “the large metropolitan publisher” but “necessarily embraces pamphlets and leaflets” and “every sort of publication which affords a vehicle of information and opinion.”[41]  Indeed, the Court expressed a special concern for the “lonely pamphleteer who uses carbon paper or a mimeograph...”[42] Today’s version of the lonely pamphleteer is the “pajama-clad” blogger expressing his ideas and opinions in an online publication.

Some people argue that bloggers do not actually engage in journalism, but they are the next extension of the expanding categories of non-traditional journalists. State and federal courts have already found that the journalist’s shield law covers student journalists, professors, authors, and freelancers because these professions perform essentially the function as reporters: to gather and disseminate information to the public. Additionally, freedom of the press “is a right which belongs to the public; it is not the private preserve of those possess the implements of publishing.”[43] Moreover, claiming bloggers should not be able to invoke the privilege because they are “not trained,” do not “work as journalists full-time,” and/or are not “sufficiently dedicated to contributing to the public debate,” seems like a empty criticism at a time when “mainstream media organizations have substantially eroded their own credibility” with scandals such as Jayson Blair’s fabrication of sources and Dan Rather’s report based on inaccurate records. [44]

Many people criticize blogs as “opinion without expertise, without resources, without reporting.”[45] Blogs are often criticized as unreliable since bloggers, unlike journalists, do not have to submit their work to editors for approval before publication.  David Shaw, of the Los Angeles Times, complained “[m]any bloggers...don’t seem to worry much about being accurate. Or fair. They just want to get their opinions—and their ‘scoops’—out there as fast as they pop into their brains.”[46] Other critics carp that it is difficult for readers to differentiate between accurate and inaccurate blogs.[47]

Advocates of citizen journalism respond that many bloggers have incentives to report accurately, and mistakes are corrected as soon as they are posted.[48] Bloggers, like journalists, are liable for defamation; the threat of litigation “has a civilizing influence on the Internet communications by improving the quality of the discourse.”[49] In addition, blogs have the advantage of mustering the knowledge of millions of people, drawing upon the “wisdom of the crowds.” [50]   Blogs certainly do not have a “monopoly on error”[51] as demonstrated by defamation suits filed against mainstream media companies.  Bloggers, like journalists, are concerned about their reputations with their readers. When interviewed by the Wall Street Journal, blogger Jeff Jarvis said, “[w]hen I make a mistake, people jump on me like white blood cells on a germ. If I don’t correct it, my reputation’s going to suffer.”[52] Additionally, conditioning the protection of a reporter’s shield on the accuracy of the individual claiming the privilege would be contrary to First Amendment principles espoused in New York Times v. Sullivan as “accuracy is relevant only in defamation actions, and even then there is no strict liability for falsehoods.” [53] Requiring accuracy would be “particularly troubling in the context of blogging, where the benefits of the medium do not come from complete accuracy of each posting but rather in its interactive nature with readers and critics.”[54]

Furthermore, blogs are not the only publications that are regarded with differing levels of trust; mainstream media outlets are subject to the same criticism.[55] Many critics object that major media entities are “too close to the corporations and politicians they cover to be trusted as watchdogs.”[56] Ironically, it may be that the escalation in the number and popularity of blogs is due to the public’s lack of confidence in mainstream journalism.[57]  While the USA Today may be a more trusted source than the National Enquirer, reporters working for either publication “equally claim the title of ‘journalist.’”[58] Courts have refused “to segregate the media into tiers based on perceived quality or trustworthiness”[59] and should continue to do so when analyzing whether the reporter’s privilege applies to citizen journalists. The O'Grady court recognized the danger of a court evaluating the quality of journalism and thus "decline[d] the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis[m]. The shield law is intended to protect the gathering and dissemination of news.”[60] Because the court could "think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news," it rejected "[a]ny attempt by courts to draw such a distinction” and warned that an attempt to draw such a distinction “would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.”[61]

In its discussion of journalism, the California court also denied limiting the privilege to publications on matters of public concern. Though some have proposed a reporter’s privilege be available only to persons who publish information involving matters of public concern, the “administrative and theoretical difficulties”[62]of this approach are overwhelming. In the context of defamation law, the Supreme Court spent over fifteen years endeavoring to make a legal distinction based on “whether the content is a matter of public concern or newsworthy.”[63]  According to Justice Douglas, “‘[P]ublic affairs’ includes a great deal more than merely political affairs. Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public. Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair.”[64]It is imprudent to adopt an amorphous standard to limit the scope of a reporter’s privilege since it has been unworkable in the defamation context.

IV.  Defining “Journalist”: How to Include Bloggers in a Federal Shield Law

Since it is “neither possible nor prudent to limit a reporter’s privilege to professional journalists,”[65] a qualified privilege should be available to persons who disseminate information to the public with a real intent to do so at the inception of the newsgathering process.  Bloggers should be protected by reporter’s shield laws based on the function of journalism. Courts should examine the evidence of a blogger’s intent to publish in the same fact-specific manner as the court in von Bulow when it found no indicia that Andrea Reynolds was a freelance author.

In the 2009 version of a federal shield law, the Senate rightly defined “covered person” as a person

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information...or other matters of public interest, [who] regularly gathers, prepares, ...writes, edits, reports or publishes on such matters...

 (ii) has such intent at the inception of the process of gathering the news or information sought; and

(iii) obtains the news or information sought in order to disseminate the news or information by [any] means...[66]

The “intent to disseminate” test is grounded in the rationale of the privilege— “to provide protection for the unfettered dissemination of information to the public.”[67] Those who contribute to the public discourse should be able to avail the privilege. However, one weakness of the standard is that it “focuses on the intent of the reporter at the time it was received.” [68] Most veteran reporters in the nation would “admit that many of their stories come to them when they are not even looking for them...Reporters often have no idea at the time they are collecting information whether they will in fact share that information with the public.”[69] Using the intent test alone, it is unclear whether a “reporter who has a friendly conversation with an acquaintance and then later decides to pursue a story based on what she learned in that conversation”[70] would be protected by the privilege. Although intended to disqualify a savvy person who “conveniently” characterizes herself as a journalist in order to invoke the privilege,  the von Bulow intent test could also have the “effect of denying the privilege to even the most established and dedicated full-time journalists.”[71]

This is why the federal statute should include a two-part test for the definition of a journalist: the traditional definition and the function test.[72] The first definition of a journalist should be the traditional definition that includes an association with a media entity, which would avoid the aforementioned problem of professional journalists possibly not being able to invoke the privilege. The second definition of journalist should be the intent-based test based on the function of journalism, which would cover bloggers and other non-traditional journalists. The test would be a fact-based inquiry like the close examination of Reynolds’s intent to publish in von Bulow. This tough standard would ensure limitations on the privilege rather than extending it to anyone with a computer and an Internet connection.

The qualified privilege could be overcome by showing three elements: “(1) the desired information is critical to the maintenance of a party’s claim, defense, or proof of an issue; (2) the information sought cannot be obtained by alternative means; and (3) there is a compelling interest in the information that outweighs the public’s interest in the free flow of information.”[73]  The Senate essentially created the same parameters for a qualified privilege in its proposed legislation in 2009.[74] A qualified privilege would “soften the blow of an expansive definition of those persons and entities entitled to invoke it.”[75]

The federal reporter’s shield law should also include narrow exceptions to the privilege for “circumstances in which countervailing societal interests outweigh any societal interest in preserving the privilege.” This includes circumstances when a subpoena is “directed to someone who witnessed or participated in a criminal or tortious activity (exclud[ing] ‘leaks’ of classified or national security information).” [76] Another exception would include times when a “direct and imminent threat to national security warrants compelling testimony”[77] or when “reasonably certain death or substantial bodily harm” may occur.[78]  These three basic exceptions were also outlined in the Senate’s most recent attempt to pass a federal reporter shield law.[79]

Most courts have held that journalists who participate in a crime are barred from invoking the privilege.[80]  Accordingly, this exception does not harm the underlying purpose of the privilege since there is “no value in encouraging sources to commit crimes in front of journalists.”[81] Leaking classified information should not fall under the crime exception since “leaks of government information, whether classified or not, have become an essential means by which the public learns about government activities.” [82] Since current protection is inadequate for whistleblowers, and “as a result, leaking information to the press is often the only realistic means of shedding light on questionable or illegal government practices,”[83] a privilege protecting whistleblowers encourages such persons to come forward serves the public interest. Prosecuting those who leak national security or other classified information is not hindered by a reporter shield law.[84]

Though most fears that a federal shield law would undermine national security are misplaced, there should be an exception to the privilege “if the reporter’s testimony would help prevent a direct and imminent threat to national security.” [85] The Supreme Court recognized an exception  for “imminent threat” to national security in the Pentagon Papers case, which concluded that the “presumption against prior restraints could not be overridden absent an immediate and serious threat to national security.” [86]  This is a reasonable standard that should apply to the reporter’s privilege.

Finally, an exception for preventing “death or bodily harm to another human being applies to other testimonial privileges, including the attorney-client privilege.”[87] It is prudent to extend this exception to the reporter’s privilege “because in such cases the public’s interest in the information far outweighs the public’s interest in encouraging anonymous sources from coming forward.”[88]

V.  The Costs and Benefits of a Federal Reporter Shield Law

The most significant cost of any privilege is that it deprives courts of evidence. Critics claim that a privilege closes the courts for individuals harmed as a result of the free press, that a shield creates an exception to courts as a place to redress injury.[89] However, defamatory statements are actionable regardless of the enactment of a shield law.  There is no privilege if the media caused the damage.[90]Moreover, some states “explicitly reject the privilege when a media entity is a party to the litigation, a situation that typically occurs in defamation cases,” while others supply the media with some “protection by requiring a plaintiff to demonstrate that the information is important for her case and that she has attempted to obtain the information through other means.”[91]

According to opponents of the privilege, it benefits the media; enacting a federal shield law would lead to accountability problems if reporters are not forced to reveal anonymous sources.[92] The purpose of the privilege is to help the free flow of information to the public rather than aid the press. The privilege benefits the public and whistleblowers and does not hinder law enforcement. In fact, adopting a reporter’s privilege is viewed “as a necessary component of a larger criminal law reform, based on the hope that with this new protection reporters would be more willing to publish stories revealing criminal activity. The states’ enthusiasm for shield laws suggests that such laws enhance rather than detract from the ability of law enforcement to fight crime.” [93] Not having a federal privilege actually hinders attorneys general. Federal and state privileges should mirror each other since reporters do not know where a subpoena will come from. A federal reporter shield law creates certainty for reporters and attorneys. [94]Thirty-five states with shield laws submitted an amici curiae brief to the Supreme Court of the United States arguing for a grant of certiorari in Judith Miller’s case because the lack of a federal  privilege undermines the judicial and legislative determinations of forty-nine states and the District of Columbia.[95]

The irony of not enacting a federal shield law in an age of Wikileaks means that websites such as Wikileaks are more likely to receive information and documents than a reporter, who would verify the information, edit statements, and redact necessary portions. Without a reporter’s shield law, it is likely that sources will go to Wikileaks, which sends information directly to the public and is not subject to professional ethics. Wikileaks is empowered if reporters are not allowed to protect their sources. [96]

VI.  Conclusion

A federal shield law for reporters and citizen journalists would benefit the public by protecting whistleblowers and encouraging anonymous sources to reveal information to responsible disseminators of the news. Because the purpose of the privilege is to help the flow of information to the public, Congress should pass a federal shield reporter’s shield law that protects traditional and citizen journalists. The privilege should not simply cover members of the traditional press, for “[t]he First Amendment does not guarantee the press a constitutional right... not available to the public generally.”[97] Congress should combine the traditional definition of a reporter associated with a media entity with an intent-based inquiry based on the function of journalism to create a federal reporter’s shield law to enhance the First Amendment and encourage the free flow of information in our democracy.