Commentary 1/18/06

From Cyberlaw

• Privilege
  • If I am a blogger, and I'm "covering the beat of Harvard Law School," does that make me a "journalist"? Should I get privilege?
    • Based on a pure reading of the first amendment, there is no reason why you would not be considered a journalist. The press freedom upon which the privilege is based was originally understood to be a widespread right, available even to the "lone pamphleteer," which is what today's bloggers are. However, in practice, fed courts have not extended the privilege to just anyone. Two circuits have devised a test that determines not if a person IS a journalist, but whether what they were DOING is investigative journalism, reasoning the privilege protects the newsgathering activity and not the newsgatherer. The basic three part test is 1) was the newsgathering investigative? 2) was it done with the intent to disseminate to the public the info gathered? 3) Was it news? This test, however, brings up its own definitional problem of what news is, but the courts sidestepped that question. But they have used the test to rule that a person investigating a non-fiction book on a long-standing family feud over the U-Haul corporation was protected by the privilege, and that a person hired by the WCW to write independent commentaries on professional wrestling was not. State statutory privileges are not bound by the First Amendment and most explicitly state that the privilege is only available to people who are employed by journalistic organizations.
• There's a disagreement over when the priest-penitent privilege began:
  • 8 Wigmore on Evidence, § 2394 (noting that priest-penitent privilege is largely a legislative creature of the early twentieth century).
  • But see Michael J. Mazza, Comment, Should Clergy Hold the Priest Penitent Privilege?, 82 Marq. L. Rev. 171, 175-82 (1998) (discussing commentators arguing that priest-penitent privilege extends perhaps to the sixteenth century).