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Life of a Law Student, University of Houston Law Center

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Bloggers as Newsmen – Expanding the Testimonial Privilege

By: Luke Gilman | Other Posts by
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Should bloggers have the same testimonial privilege as the newspaper people? Um, yes please…? In any event, an interesting Note from Boston University Law Review:

This Note examines the complexities of the reporter’s privilege and how it has been interpreted in the context of advancing technology. Part I examines the history of the debate behind the reporter’s privilege, stemming from the Supreme Court’s decision in Branzburg v. Hayes, that the First Amendment does not guarantee an absolute testimonial privilege to journalists. It then compares examples of the various types of state statutes that grant reporters a shield protection despite the Court’s ruling. Part II explores the question of privacy and its unique application to the anonymity that the Internet provides to bloggers and online newsmen. Part III discusses the legal questions surrounding blogs more specifically, including the courts’ current rulings that relate to Internet speech and newsgathering. In Part IV, this Note argues that bloggers should be considered journalists, and calls for a federal shield statute that protects all newsmen from compelled testimony in response to a subpoena. The proposed statute would apply regardless of the medium these reporters employed in the dissemination of news. It further proposes that the criteria for determining who qualifies for the federal privilege should be based on the product an individual produces, rather than professional affiliation or chosen medium. Yet, to address the interests of the justice system and of civil plaintiffs, this Note proposes an exception to the grant of privilege for misprision of felony, an additional statutory protection for whistleblowers, and a balancing test to accommodate the differing priorities of parties to a civil claim.

Anne M. Macrander, Bloggers as Newsmen: Expanding the Testimonial Privilege, 88 B.U. L. Rev. 1075 (2008)

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