When it comes to journalistic privilege, we have to ask ourselves: What is a journalist, and what is privilege?
The expansion of the internet has made it so everybody has the ability to publish their opinions, political ideologies, stories, etc. The internet has also given rise to, “citizen journalism.” in which everyday citizens can use Twitter, blogs, or sites like Huffington Post, to report on events much like a journalist.
The idea of journalism has lost its professionality with the massive opportunity within the internet.
So, when we are talking about “journalistic privilege” and what is eligible to receive such protections, there is a bit of confusion.
In my last post, I mentioned the Branzburg v. Hayes as one of the first Supreme Court Cases that seriously considered reporter rights in terms of shielding confidential sources.
In the 5-4 majority decision, it was determined that there was “no constitutional privilege for a reporter to refuse to appear before a grand jury (71).”
One of the Supreme Court Justices on this case, Justice Powell, agreed with the decision. He agreed primarily because, even then, there was no clear way to discern the eligibility of the case.
However, in his notes, Powell clearly sides with supporting the “common law” and “evidentiary privilege” which protects confidential information.
Many smaller courts did agree with some protection of privilege, but it has definitely been considered to be a “case by case” basis.
In the book Surveillance after Snowden, an interesting argument is made that, in journalistic practice, “responsibility of the public requires privilege.”
Though, even though there is some general understanding of some journalist protection, there is absolutely no establishment on what a journalist is. To me, it seems backward to identify the characteristics of a profession when the professional itself is undefined.
If for example, the infamous Pentagon Papers were released on the Huffington post by a bi-weekly contributor who has a mom blog on the side (as opposed to Neil Sheehan a NY Times reporter), wouldn’t the response to the scandal be dramatically different? I sure think so.