Journalistic Privilege

Judith Miller, a reporter for the New York Times, faces possible imprisonment for refusing to obey a court order to divulge a source for a new story. She is claiming “journalistic privilege.”

As her case wends her way through the courts, one of the things that’s problematic about her defense is coming up with non-question begging criteria of who is a journalist. All would agree that Ms. Miller is a journalist, and a fine one at that. What’s problematic is whether a reporter for the New York Times can be distinguished from an individual who publishes on a blog freely accessible to anyone with an internet connection or a small town newspaper reporter who writes for a circulation of 200. Surely, the size of one’s readership is not relevant to defining who is or who is not a journalist. (What if I print out my writings and hand them out free to passersby on street corners?)

Today, there are bloggers with thousands, even tens-of-thousands of readers, more so than many traditional newspapers. (Think of Matt Drudge and Andrew Sullivan.) So defining a journalist in terms of numbers of readers is fruitless.

If anyone who publishes on the internet, (or communicates his or her ideas to others in other ways) is a “journalist”, then virtually anyone could claim the “privilege”, and the privilege being well-nigh universal would defeat the purpose of laws which require people to reveal the source of illegal leaks to courts. (Which may or may not be a good thing.)
The upshot is that it seems that the courts will either have to extend the “journalistic privilege” to virtually everyone or deny it to everyone. What would be dangerous territory would be for the government to set itself up as an arbiter of who is or is not a “journalist”. Although the government licenses broadcast media, the consequences of print media being required to have a government imprimatur have frightening implications for freedom of expression.

Update: Eugene Volokh at The Volokh Conspiracy links to this dialogue about journalistic privilege in which a Constitutional Law Professor points out that the courts are loathe to define who is a journalist as that is repugnant to the First Amendment.