[Politech] Some replies to bloggers hurting reporters' 1A defense [fs]

From: Declan McCullagh (declan@private)
Date: Tue Jan 11 2005 - 21:32:20 PST


-------- Original Message --------
Subject: RE: [Politech] Bloggers undercut reporters' 1A privilege
defense [fs]
Date: Fri, 7 Jan 2005 04:22:14 -0800
From: Lindsey, Ethan <elindsey@private>
To: Declan McCullagh <declan@private>

Declan --
In my education at Columbia j-school, our journalism law class had
special seminars with first amendment lawyer Floyd Abrams (of Pentagon
papers fame and now representing Miller and NYT). Interestingly he and
the two faculy for the class (Columbia law prof Vincent Blasi and NYT
reporter Anthony Lewis) made the same point Gerstein references in the
article...quite possible the most egregious restriction on press freedom
would be some sort of credentialing rule, where the government (or some
ad hoc body) can choose who *is a journalist, and who is not.

Once that happens, the body would then be in a position to stifle speech
arbitrarily by deciding who has those protections. And the illegality of
credentialing has been repeatedly upheld in the courts for decades. So,
in some ways, when I read the reports of Abrams' efforts in these cases
I am surprised. Then again, I am no legal scholar so maybe his argument
for Miller's protection is on an entirely different basis.

Cheers,
Ethan

---
Ethan Lindsey
Marketplace
elindsey@private
ph:213.621.3531........fax:213.621.3506





-------- Original Message --------
Subject: Re: [Politech] Bloggers undercut reporters' 1A privilege
defense [fs]
Date: Fri, 7 Jan 2005 10:08:34 +0100
From: Brad Knowles <brad@private-abuse.org>
To: Declan McCullagh <declan@private>
References: <41DE1919.7070801@private>

At 12:07 AM -0500 2005-01-07, Declan McCullagh quoted JOSH GERSTEIN:

>      The crux of the reporters' contention is that the public would be
>  less well informed if journalists could not promise their sources
>  confidentiality. However, the proliferation of blogs and bloggers could
>  represent the Achilles' heel in this approach. If Ms. Miller and Mr.
>  Cooper are entitled to claim special treatment in the courts, so too
>  could hundreds of thousands of Americans who use the Internet to post
>  comments about their views on current events.

	There's a fundamental difference between a blogger and a reporter
-- the former is without editorial controls placed on what they
choose to write, nor are they subject to ethical or moral standards,
beyond ridicule.

	The latter is held responsible to an editor, and presumably
certain ethical and/or moral standards above and beyond the minimal
legal standards that are required.


	If the blogger claim were valid, then all doctors would be at
risk from having their special status stripped as a result of all the
people in the world who are armed with band-aids, and all lawyers
would be at risk as a result of all the people in the world who are
armed with an opinion.

	Just because someone is capable of putting two words together and
then making use of a publication system does not necessarily make
them a reporter, and therefore subject to the same standards and
privileges.

-- 
Brad Knowles, <brad@private-abuse.org>

"Those who would give up essential Liberty, to purchase a little
temporary Safety, deserve neither Liberty nor Safety."

     -- Benjamin Franklin (1706-1790), reply of the Pennsylvania
     Assembly to the Governor, November 11, 1755

   SAGE member since 1995.  See <http://www.sage.org/> for more info.






-------- Original Message --------
Subject: Re: [Politech] Bloggers undercut reporters' 1A privilege
defense [fs]
Date: Fri, 7 Jan 2005 01:25:07 -0600
From: Jim Davidson <davidson@private>
To: Declan McCullagh <declan@private>

Dear Declan,

Interesting essay.  I'm curious why the existence of more reporters
does anything to jeopardize the freedoms and privileges of existing
reporters.  It would seem to me that Josh Gerstein is trying to
assert that bloggers are not reporters.

Yet, they do the same thing that reporters do, often faster, cheaper,
and better.  So, why aren't they also reporters?

And if they are reporters, then what could possibly disqualify them
from the same freedom to keep confidential sources private?

The existence of bloggers doesn't undercut the legal defense of
Miller and Cooper.  It simply has to be understood as an aspect
of the development of journalism.  When the printing press was
invented, it put a lot of scribes out of work.  So what?  There
are still people paid for calligraphy, because pretty handwriting
is marketable - and there are probably more scribes working today
than ever before.  Journalists can't wave a magic wand and put
the worldwide web back into the brain it sprang from, even if Tim
Berners-Lee were agreeable.

Everyone does have a freedom not to testify.  Period.  There is
no "legal privilege" not to testify that trumps the freedom not
to testify.  Indeed, it is wrong to describe a God-given right as
a privilege.

>     The crux of the reportersí contention is that the public would
> be less well informed if journalists could not promise their sources
> confidentiality.

That's true.  It is as true for web loggers as it is true for the
more effete, eastern, intellectual, journalism school trained,
fashionable dimwits who get paid by daily newsrags.

> If Ms. Miller and Mr. Cooper are entitled to claim special treatment
> in the courts, so too could hundreds of thousands of Americans who
> use the Internet to post comments about their views on current events.

Heaven forfend the entire population of the USA might be treated
to equal protection under the law.  I do realize that the so-called
Fourteenth Amendment was "ratified" at bayonet-point in many state
capitols when it was brought to a vote, but it is part of the
constitution.  It is one of the sources of that "legal privilege"
that the journalists so crave.

What could possibly be wrong with having the same freedom for
everyone?  What is it about journalists that makes them suited
to extra-special privileges?  Some sort of secret handshake?

Just another sign of a dinosaur industry on its last legs.

Regards,

Jim
  http://indomitus.net/



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