Numerous questions and concerns are presented by the Apple case and by the rising prominence of blogging in general. What protections are afforded to bloggers when they are relying on confidential sources to disseminate information? What protections should be afforded? How can a court determine when bloggers are acting as reporters in the first place? And, what protections do traditional reporters get in similar situations? This note will attempt to answer these questions with the purpose of the First Amendment (as well as the practicality and risks of extending its protections) in mind. The next section will follow the development of the traditional reporter's privilege under federal law, examining the Supreme Court case Branzburg v. Hayes and federal circuit court decisions, concentrating on how the circuit courts determine who and what is protected under the guarantees of the First Amendment. This note will then briefly discuss state constitutional privileges and statutory shields for reporters focusing on how states determine who is included in the category of reporters and what materials are considered journalistic. The analysis section will start by applying the federal First Amendment jurisprudence and the state constitutional and statutory privilege of New York and California to the context of blogging; then it will focus on the purpose of the First Amendment protections and statutory shields to examine whether blogging furthers this purpose. Finally, the proposed solution will further focus in on the systemic nature of free speech and press and the First Amendment's function in our democracy to support a determination that court inquiries into a blogger's privilege should focus on whether the results, not the process, of the blogger's speech advances our democracy.
Stephanie J. Frazee,
Bloggers as Reporters: An Effect-Based Approach to First Amendment Protections in a New Age of Information Dissemination,
8 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol8/iss3/5