As their reputations grow, grassroots, non-professional journalists are increasingly the target of legal and political harassment. Will the wide-open world of online journalism survive?
Over the past month, in two courthouses on opposite coasts, the first shots were fired in what is likely to be a long and dramatic “battle over blogging.” In the U.S. District Court for Southern New York, City lawyers were demanding that the New York City Independent Media Center, (NYC IMC) turn over publicly available documents relating to an animal rights march in 2002. And in California, Apple Computer had decided to subpoena three bloggers over their publication of trade secrets obtained from anonymous sources. The two cases ended differently, and both rulings ultimately skirted the fundamental question of whether traditional journalistic privileges were available to grassroots journalists in an era of online media. Nevertheless, it seems obvious that while bloggers and more mainstream journalists might be reaching an uneasy truce, the legal and political worlds are just starting to grapple with fundamental questions brought about by the onset of the digital era.
Two Courtrooms, Two Murky Rulings
The Indymedia subpoena arose from a civil suit in which New York City is a currently a defendant. In it, the City demanded voluminous information, including all of the NYC IMC’s news reporting, emails, and web pages relating to the 2002 World Economic Forum. Indymedia made three arguments in seeking to quash the subpoena: first, that the material sought was largely irrelevant to the case; second, that the City of New York could obtain the information it sought just as easily as NYC IMC; third, that a first amendment reporter's privilege protected the NYC IMC.
A US District Court judge agreed with NYC IMC that the material was of marginal relevance and also that the material was publicly available and thus obtainable by the City. Nevertheless, the judge did not directly address the question of reporters privilege, although he did not he dismiss the argument outright.
A second case in California that garnered wide publicity from the blogging community resulted in an equally murky outcome. According to LawBlog.com, “[California Judge] Kleinberg ruled in the Apple Computer, Inc. case that Monish Bhatia, Jason O'Grady and a third blogger with the pseudonym Kasper Jade were not protected by the First Amendment when they published trade secrets obtained from third parties about an unreleased Apple product code-named ‘Asteroid.’”
Based on the text of the judge’s ruling, UCLA Law Professor Eric Volokh concluded that the judge avoided the blogging question completely. “The judge did not deal with any possible subpoenas against the bloggers,” Volokh wrote. “He thus didn't decide whether bloggers are entitled to be treated the same as other journalists.”
Despite the uncertainty of the rulings, it seems certain that courts will revisit the questions raised by the Indymedia and Apple Computer cases again. In the meantime, though, battles being fought over basic issues of mainstream journalistic privilege could render the newer questions of digital privilege moot.
Grassroots Journalism and the Plame Case
Does a reporter have the legal right not to disclose his or her anonymous sources to a federal grand jury? Although many Americans, and even some journalists, might answer “yes,” the constitutional basis for the privileging of journalistic sources rests more on custom than on legal precedent. In the landmark case 1972 Branzburg v Hays, the U.S. Supreme Court ruled that 5-4 decision that there was no compelling constitutional basis by which a reporter could refuse to answer questions before a grand jury about sources. In the thirty years since Branzburg, the ability of journalists to shield anonymous sources has largely stemmed from both state “shield laws” and from a tacit “truce” between the news media and the government.
It now seems abundantly clear that the truce is over. Over the past two years, a number of journalists have been fined and imprisoned over their refusal to reveal their anonymous sources, the most well known of whom, Judith Miller of the New York Times and Matthew Cooper of Time magazine, now face up to eighteen months in jail for their refusal to divulge who leaked the identity of CIA agent Valerie Plame. According to many mainstream media commentators, the press is under the kind of sustained legal attack it has largely avoided in three decades since Branzburg.
The question of how internet journalism relates to the Miller / Cooper case has been largely ignored so far, although the issue is clearly on the minds of lawyers and judges as they struggle to define acceptable boundaries of source anonymity. In the March / April 2005 issue of Columbia Journalism Review, Douglas McCollam reports that, during Miller and Cooper’s appeal of their sentence before the Circuit Court of Appeals, presiding judges seemed to struggle with the question of who would qualify for a reporter’s privilege. “If an Internet blogger was illegally leaked nuclear secrets and posted it on her Web site, would she be entitled to refuse to testify about her source? the judges wondered. Floyd Abrams [Cooper and Millers lawyer] soft-shoed a bit before conceding that, under the privilege he was seeking, she would.” McCollam wryly notes that, upon hearing Abrams’ answer, “a collective flinch rippled through the establishment media in the gallery.”
Fearful that the courts will conclusively strip away their constitutional protections, many media organizations have concluded that a Federal “shield law” represents their best defense against governmental harassment. Shield laws, or specific legislative protections for journalists, exist in many states though not a federal level. Shield laws may not offer much protection for grassroots journalists, however.. As Jacob Weisberg of Slate puts it, “there's a big problem with journalist shield laws, which advocates have yet to answer. How do you decide who is a journalist? If you create a privilege that applies to a group, someone has to decide who belongs and who doesn't.”
New York State, for instance, has conclusively decided who gets protection from its Shield Law: professional journalists, and professional journalists only. A professional journalist, accord to the New York law, “shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news … such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.”
Any federal law that followed the lead of a majority of state laws in its definition of journalism would leave bloggers and other volunteer journalists out in the cold.
Wither the FEC?
Assuming that grassroots journalists survive the scrutiny of the courts and the state legislatures, another potential hurdle awaits. In mid-March, the online technology journal CNet published an interview with Republican FEC commissioner Bradley Smith under the headline “The Coming Crackdown on Blogging.” In it, Smith warned that the McCain-Feingold Campaign Finance law could soon force the FEC to start to regulate political activity on the internet. “In just a few months,” wrote CNet, “bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.”
After days of on- and offline turmoil, Democratic FEC commissioner Ellen Weintraub took to the pages of CNet to tell bloggers to “chill out already.” “Reports of a Federal Election Commission plot to ‘crack down’ on blogging and e-mail are wildly exaggerated.” The very next day Senators McCain and Feingold issued a statement that noted, in part, that “the latest misinformation from the antireform crowd is the suggestion that our bill will require regulation of blogs and other Internet communications. This issue has nothing to with private citizens communicating on the Internet.”
Despite the confusion and accompanying denials, the Smith interview explicitly raised the question of how difficult it would be to draw a line as to what counted as internet journalism and what did not. “Blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog?” asked Smith rhetorically. “Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?”
An Uncertain Future
Almost every issue related to the future of grassroots journalism remains up in the air. There is no reason to assume that the internet publishing world that exists four years from now will be any less free than the one that exists today. At the same time, though, there is no reason to assume that it will inevitably be the same. As blogs and other forms of online reporting become ever more accepted by the mainstream, it would behoove grassroots journalists to remember that they are not the sole arbiters of their own destiny. Politics still exist, even in the brave new world of the internet, and so do courts, subpoenas, and regulatory bodies. In the last five years, the world of journalism has changed dramatically. Some social systems, however, don’t change quite as quickly. The interaction between the rapidly shifting world of online publishing and the slower, more organically driven social system will do much to shape the future of journalism in the United States