Who Should Have "Journalistic Privilege"?

Glenn Harlan Reynolds, proprietor of Instapundit.com, one of the 800 pound gorillas among internet blogs, writes an opinion piece in USA Today regarding the subject of "journalist privilege", and who should or shouldn't have it. Given the current FEC hearings on the subject of regulating blogs, I'm sure the timing isn't coincidental:

Many people would find their jobs easier if they didn't have to respond to those pesky subpoenas. Journalists seem to feel that way: Keeping promises about confidentiality is more important, they tell us, than fulfilling their duty as citizens to testify.

I disagree, especially in those cases of leaked government secrets in which the journalist isn't a disinterested observer but something more like an accomplice. It has certainly seemed that way in the case of leaked information about Valerie Plame. The same news organizations that originally were calling for a no-holds-barred investigation of the leak turn out to know who the leaker is already. They're just not telling.

That's one of the problems with claims to "journalistic privilege." Journalists aren't claiming the right to tell us things we want to know. They're claiming the right to not tell things they'd rather we didn't know.

Another problem is that claims of privilege turn the press into a privileged class. If ordinary people witness a crime, they have to talk about it. If they participate in a crime — say, by receiving classified documents — they have to say where they got them. Journalists want to be treated differently, but the First Amendment doesn't create that sort of privilege. Nor should we.

Many people who support these privileges say that they would be limited to "real" journalists. But who decides when a journalist is real? If the government decides, isn't that like licensing the press, something the First Amendment was designed to prevent? And if journalists decide, isn't that likely to lead to a closed-shop, guild mentality at exactly the moment when citizen journalism by non-professionals is taking off? All sorts of people are reporting news via Web logs and the Internet. Shouldn't they be entitled to the same privilege?

Press freedom is for everyone, not just professionals. James Madison wrote about "freedom in the use of the press," making clear that the First Amendment is for everyone who publishes, not just members of the professional-media guild.

I think that reporters' privileges are a dubious idea, but if we're to have them, let's have them for everyone who reports news, not just professional journalists.

Glenn's got the right idea. Either you excuse everyone who reports news, whether it's printed on dead trees, broadcast over the airwaves, or published on a blog, or you excuse nobody, which in my mind would violate the First Amendment protections for freedom of the press. I, of course, vote for the former.