Is a blogger a journalist?

If a reporter for one of the mainstream media discloses confidential material, such as information from a secret grand jury hearing, he is often afforded protection under his state's shield law (if his state has one). Shield laws protect reporters from having to reveal the sources of their information. And protecting sources is essential to a journalist's work. If a journalist cannot protect a source's wish for anonymity, that journalist loses credibility. He loses the trust of the source and ultimately the source will be reluctant to reveal confidential information in the future.

Build a reputation for doing right by your sources, Lance Williams, an investigative reporter for the San Francisco Chronicle, said during the National Writers Workshop last weekend.

If journalists were to make a habit of turning over their anonymous tipsters whenever a investigative agency comes calling, it would undermine the industry as a whole and have a chilling effect on sources. Many of the stories that now make it into the papers would dry up.

Similarly if a journalist for a mainstream media outlet, such as the San Francisco Chronicle, finds himself being sued or being coerced by the government to reveal his sources, his deep-pocketed employer will often back him, paying what sometimes amounts to a small fortune in legal fees to protect the journalist. Such was the case with Williams, when a federal judge ordered him and his colleague Mark Fainaru-Wada to prison for as long as a year and a half. The jail time was seen as the only means of pressuring the reporters into revealing their sources of confidential grand jury testimony about star athletes' use of steroids. Williams said last weekend during the Writers Workshop that the Hearst Corporation, which owns the Chronicle, probably spent more than $2 million defending him and Fainaru-Wada. As a result, the two journalists never spent a day in prison.

But one of the fastest growing and most influential forms of communication out there receive no such protection: Blogging. So far the courts have been reluctant to grant bloggers protection under state shield laws and most bloggers don't have pockets that are deep enough to fund a protracted legal battle. Underscoring this point was the fact that a California judge last year ruled that three bloggers, who Apple Computer claims revealed trade secrets in their online publications, must reveal their anonymous sources.

Many feel this was the wrong decision. "There is no principled distinction between a New York Times reporter and a blogger for these purposes. Both operate as news sources for wide swaths of the general public," said Susan Crawford, a law professor at Cardozo law school of Yeshiva University (and a blogger).

Professor Philip Meyer (photo) of the University of North Carolina wrote last year that, "Traditional journalists should support them (bloggers). There is neither sound moral or legal justification for claiming that those who work for major news organizations have stronger First Amendment rights than the rest of us."

I happen to agree. These are heady times, times when so many precedents are being set and the future of these nascent online communication forms are being decided. The stakes are high and it's important that we get it right. In this case, the right thing is to afford bloggers more protection, not less.