By Mary-Rose Papandrea. Full text here.
The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who should be considered a reporter entitled to invoke the privilege, the continued existence of the privilege itself is in grave doubt.
This Article argues that this hysteria is misplaced. The development of the Internet as a new medium of communication in many ways poses the same kinds of challenges to the reporter’s privilege that courts and state legislatures have faced for decades as television reporters, radio commentators, book authors, documentary filmmakers, and scholars have sought to invoke its protections. After exploring the history and purpose of the reporter’s privilege, and the increasingly significant contributions of citizen journalists to public debate, this Article makes a radical proposal: everyone who disseminates information to the public should be presumptively entitled to invoke the reporter’s privilege, whether based on the First Amendment, federal common law, or a state shield law. Rather than attempting to limit the category of individuals who are entitled to the privilege by focusing on the medium of publication, the “newsworthy” nature of the desired information, or a “functional” approach that unconstitutionally requires judicial scrutiny of the editorial process, the legal system should instead focus on limiting the scope of the privilege itself. This Article offers several exceptions to a presumptive privilege, appropriately balancing the public’s fundamental interest in a vigorous and informed debate against its equally important interests in fairness and justice.