"Pajama-clad" arbitrarily censoring bloggers and the "reporter's privilege"

The abstract of a law journal article titled, "Citizen Journalism and the Reporter’s Privilege" Minnesota Law Review 91 (2007):515-591, by Mary-Rose Papandrea, Boston College Law School, begins,

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 counts as a reporter entitled to invoke the privilege, its continued existence is in grave doubt.

The "reporter's privilege" is the right of journalists to keep their confidential sources secret. As for the term "pajama-clad," pajamas are a symbol of leisure, casualness, informality, and privacy. Famous pajamas wearer Hugh Hefner said, "I have about 100 pairs of pajamas. I like to see people dressed comfortably."

Despite what many people think, public blogs are not private by any stretch of the imagination. A public blog is not like a private letter, email, or telephone call -- a public blog can be accessed by anyone in the world who has open Internet access. A claim that a public blog is private becomes even more tenuous when that blog is authoritatively cited or referenced by a court opinion, scholarly journal article, a scientific database (e.g., the listing of arbitrarily censoring blog Panda's Thumb in Thomson Scientific's ISI Web of Knowledge index), or other authority.

Well, at last I have a name for bloggers who arbitrarily censor comments while hiding behind a claim of "privacy": "Pajama-clad." Pajama-clad blogger Fatheaded Ed Brayton, pajama-clad blogger Sleazy PZ Myers, etc.. Sounds good.

Anyway, back to the quote from the abstract of the law journal article. IMO arguing that a protection should be abolished because some people with a weak claim to it might invoke it is stupid. It is like saying that we should abolish freedom of speech because people who shout "fire" in crowded theaters might invoke it.

The abstract continues,

The accompanying 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 seek to invoke its protections. After exploring the history and purpose of the reporter’s privilege, and the increasingly significant contributions of citizen journalists to the 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 focus should instead be on limiting the scope of the privilege itself. This Article offers several exceptions to a presumptive privilege that appropriately balance the public’s fundamental interest in a vigorous and informed debate against its equally important interests in fairness and justice.

So here is a "let them eat cake and have it too" (to borrow from Marie Antoinette) proposal for giving bloggers special rights without requiring special concomitant responsibilities. The above abstract says that bloggers should be presumptively entitled to invoke the reporter's privilege when they "[disseminate] information to the public." But what if, say, that dissemination of "information" to the public is an attack on a particular individual? Should that individual not have the right to post a response on the blog that attacked him/her? IMO, the "fairness doctrine" -- which requires allowing presentation of all views -- should be applied to blogs. The reasons for exempting other kinds of forums from the fairness doctrine do not apply to blogs because comment space on blogs is virtually unlimited and free of charge to the bloggers. Also, people can normally buy space or time in a newspaper, magazine, and radio and TV stations, but I never heard of anyone buying comment space on a blog.

OK, I admit that my "let them eat cake and have it too" analogy was unfair because the journal article never addressed the issue of arbitrary censorship of blog visitors' comments. However, the Electronic Frontier Foundation -- which falsely claims to champion the rights of all Internet users -- is also in favor of generally allowing bloggers to invoke the reporter's privilege, but nowhere on the EFF website did I see anything supporting the freedom-of-speech rights of blog commenters. I plan on posting more about the EFF later.

A full copy of the journal article is here. It has a good comprehensive general discussion of the reporter's privilege.

As I said, laws are nice but are not the complete answer because many wronged people do not have the time and/or the money to sue. However, laws serve as guiding principles and also serve as deterrents even when they are rarely invoked. And as I said, there is a need to change the current Internet culture that condones and even approves such things as arbitrary censorship and cyberbullying.
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