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March 6, 2005
A Journalist Is As a Journalist Does
Esteemed Yale law professor/First Amendment scholar Jack Balkin, weighing in on who amongst the legions of bloggers ought to qualify as a journalist and therefore be protected under the "reporter's privilege":
Jonathan Glater's article in today's New York Times quotes me for the proposition that the reporter's privilege (the right, in some jurisdictions, to keep sources secret) should be extended to bloggers using a functional test. That is, a court should ask whether the blogger regularly gathers news, interviews sources, and produces content in roughly the same way that print and television reporters do. That would mean that a very large number of bloggers -- probably most -- would not enjoy the reporter's privilege. To enjoy the privilege the blogger would have to make some showing that they were functionally similar to reporters. The best evidence of this, however, would be relatively easy to provide -- it would be the blog itself.
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