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A First Amendment shield for bloggers?

Congress is debating whether there should be a federal “shield law” for reporters, modeled after state reporter’s privilege laws which exist in 35 states and which help protect vital First Amendment rights.. Of the 15 states which don’t have statutory protections for reporters, all but one have some form of protection for reporters against compelled disclosure of their sources.

A key issue is whether such reporter’s privilege laws should apply only to reporters from traditional media such as newspapers and television stations, or whether online journalists and bloggers should have protection. One federal case warned against extending a federal common law privilege to “bloggers in pajamas.”

A California Court of Appeal, in the well-reasoned decision of O’Grady v. Superior Court,, held that on-line journalists are “reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”

This reasoning is persuasive. If sources need a promise of confidentiality to blow the whistle on corporate and government wrongdoing – and they do – and if journalists need to offer confidentiality on occasion, it shouldn’t matter whether the journalist’s story is delivered in a truck or over the Internet. Either way, the reporter’s privilege is protecting important speech and enabling vital stories to be told. Congress should pass a shield law, and it should extend to on-line journalists.

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