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January 10, 2005



I think the point was that journalists have been able to exercise their free-speech rights throughout American history, while bloggers have not been able to do so throughout American history -- for the simple reason that bloggers didn't exist before (relatively) recently.

Josh Narins

Journalists also have special rights, the only one that I know about for sure relates to search notification.

Mark Tapscott

Thanks, Dan. I couldn't have said it better myself.

Joe Buck

Ah, Josh, but who is a journalist?

The EFF is arguing that bloggers have the same right to keep sources secret that traditional journalists do, and they're representing a couple of Mac-centric blogs, fighting against Apple's efforts to force disclosure of user identities in connection with the recent leak of an OSX beta.

See this item on EFF's site.

Tim Andonian

Speaking of the matter, today I got censored over at the new San Jose blog by Tom McEnery, Jude Barry, Kevin Bayley, and John McEnery, on "a look inside San Jose politics and culture". I don't think this at all falls in the range of 'fucking up royally", but I don't think it is good practice. Each post is sent through an unknown moderator(I asked, with no response), and I have seemingly been censored a second time time as it has been 2 hours since I posted another comment striking up conversation about the happenings in NC.
My comments were much on the same vein as they have been here, framing digital network organization with democratic principles, a topic I thought was certainly inline with what they are trying to discuss over there. As Tom McEnery put; "This is a chance for all of us to work to create a better community on the shoulders of many, many others"
A bad start to a blog with good intention and good potential.
Anyone visiting this site?

Jozef Imrich

On 5 January Dan wrote an action-provoking piece entitled “Distributed Journalism's Future”

The potential for distributed journalism to be a key part of tomorrow's news strikes me as immense...
Suppose, for example, that we assemble a nationwide group of volunteers -- lawyers who are familiar with statutes -- and ask each of them to take a small section of one of those immense congressional bills that the members of Congress don't even read themselves. Suppose, further, that we could get this analysis posted before the House and Senate did their final votes. We might catch a lot of sleazy stuff before it became law. Today we're lucky if we know about any of it before it actually passes....

In the context of this entry and the previous entry, I would like to draw to your attention the virgin award brought to us by the friend of digital diggers - Technorati ...

And the winners (and runner ups) of the Maiden [Citizen] Developers Contest are:

Joshua Tauberer, GovTrack
Want to know the status of a bill on the floor of Congress, who misses the most votes, or who gets the most bills passed? is like School House Rock on steroids for adults (oh, and children). uses the Technorati API to show what bloggers are saying about bills as they work their way through Congress.
-Blogging About Legislation
It's said that blogs empower just about anyone to make a difference with the power of expression. Can they make a difference in our government? With their power combined, I think so!
How to "Gov-Blog": Anyone can add their insight to the blogroll featured here. Just register your blog with this site, and start talking about legislation. Mention a bill by number or name (see the examples to the left), and your blog entry will show up here, or somewhere on this site. Blogs are scanned daily.

Stefan Magdalinski, is democratizing the BBC by giving every reader the chance to comment on any article, live and in real time. uses the Technorati API to add a sidebar of links to weblogs commenting on the article.

Aaron Swartz,
The URL speaks for itself. This website let's you stay on top of all things political. Specifically, it uses Technorati to show which politicians are rising and falling in the blogosphere-a phenomenon that has become increasingly relevant with politics and journalism.

PS: Mrs Rodgers: It's one of the best run hospitals in the country. It's up for the Florence Nightingale award.
Jim: And what pray is that.
Mrs Rodgers: It's won by the most hygienic hospital in the area.
- The Compassionate Society - Nathan Vass - [Yes Minister / Yes Prime Minister]


One big advantage journalists working for big newspapers still have that bloggers do not: Lawyers backing them if the source of an investigation decides to sue.

I guess it's only a matter of time before the libel suits, justified or for intimidation purposes, begin landing on bloggers. Careful reporters at organizations with editors and publishers who back their people can continue their pursuits secure in the knowledge they're safe from legal bullying.

Unfortunately, that's not the case in Blog Land. While I suppose the blogosphere might rush to provide financial aid to an unjustly sued blogger if that blogger were an Atrios or a Kos or an Andrew Sullivan, I wonder whether the same protection would apply to one of the many who practice blogging in relative obscurity.

Sadly, it seems the current news climate (corporate-controlled big media and a government that thumbs its collective nose at the FOI act) is stifling investigative reporting even of a basic nature. Controversy can upset advertisers and attract lawsuits...

Felicia Krippet

It's time to strip MSM "journalists" of any pretense of constitutional protections greater than those available to any citizen who writes a blog.

The MSM regularly manufactures bugaboos about threats to their constitutional rights. Whereas, in truth, many of the rights and privileges claimed have no support in the case law, such as the vaunted right to protect the confidentiality of sources.

What possible jurisprudential justification can anyone here offer for a dual class system of rights, with MSM above the citizen blogger?


I don't recall any print journalists claiming any kind of constitutional right to protect the confidentiality of sources. However, several states have shield laws, designed to prevent the sort of judicial abuse of reporters that's now taking place on both coasts.

Rather than "strip MSM journalists" of perceived rights, we ought to work to make sure those same rights - like shield laws - are recognized for bloggers, too.

Blogger, newspaper reporter - amateur, professional: We're all in this together, that is, trying to get at the truth of the moment and present it in the light of day.

To me the more interesting challenge will come when news bloggers start showing up at city council and county commission meetings with their laptops, and when they start petitioning state and national news and journalism associations to be recognized as legitimate news organizations.


I haven't always worked in newspapers, and someday I again won't work in newspapers, so I'm not especially enthusiastic about "special" rights for so-called professional media. I always figured the Framers recognized freedom of the press as belonging to the people because they figured that in the society they envisioned, almost anyone might have to function as a journalist at some point.

And it has taken forever, but that's what's starting to happen now.

Tim Andonian

Hey loid, I can't find Aaron Swartz' name anywhere on personal democracy. Can you post a link to it.

Felicia Krippet

loid, it's a basic tenant of the journalistic community, the aclu and hordes of constitutional law experts advocating on the behalf of MSM organizations that the 1st Amendment grants journalists the right to protect the confidentiality of their sources, by refusing to name them in a civil or criminal suit.

This argument was explicitly rejected by the Supreme Court in 1972 in Branzburg v. Hayes. However, this decision has been considered erroneous by the journalist defense bar, and courts at all levels pressed to reverse the prior holding for over three decades.

shel israel

So Dan,
Why aren't you and Mitch up in arms about Judith Miller and Matt Cooper, who tomorrow may be sentenced to 18 months each for refusing to receal their sources. If they lose, which seems likely, then the only safe sources reporters may have access to will be the offical party line spokespeople. The prosecutor intends to argue, sources say, that if our government allows these two reporters to have confidential sources, then next bloggers--100s of thousands of them will want the same freedom. I thought we already had that freedom . I've been on a soap box on this issue and I have been unable to understand why more influential voices like yours have remained silent.

Mitch Ratcliffe

Dan—I agree with you that we all must protect and practice our free speech, especially in these strange days. However, in the context of my little essay, it is the journalist's special protection that is changing. It's not going away, hopefully, but rather is being pushed out to the edges of the citizenry.

Responding to Dave Winer's broad generalization about "journalists" I hit on something I only see now as I think about your comment about my posting: Journalist suffer today from the perception that they are special, whether it is the public who believes journalists think they are special or journalists who believe they are. Hence, there is a lot of time spent in the blogosphere damning journalists for a conceit—real or imagined.

The power of the press, which with freedom of speech, religion and the right to congregate (protest), is among a very few collective rights identified by the founders, has been insulated from the public by a professionalization that had some very positive and many very negative effects for public discourse. On the positive side, it did establish a practice of objectivity that when practiced humanely produces powerfully useful first drafts of history. On the negative, it elevated journalism as practiced a growing number of companies into competition with other institutions seeking influence policy; it made journalists "players" in politics and the market who are treated differently than the ordinary public. The result of this elevation—and the way the First Amendment is treated by some, as politician sometimes wrap themselves in the flag—has alienated journalists from the public, whom they serve and, at least in the founder's time, where part of and not above in any way. The practice (speech or writing) was ordinary, the medium (the press) extraordinary because of its limited availability.

The transition we are going through now with civic journalism/citizens journalism/participatory journalism is a re-democratization of media. If we want to achieve a reintegration of the best practices of journalism with the spirit of democracy, we should not generalize about journalists or bloggers and recognize everyone in this incredible time has the potential to tell a story that transforms our shared consciousness.

BTW, Dan, I am going to cross post this on my blog, since I didn't see a trackback from your posting at my site or on Technorati.

Mitch Ratcliffe

Shel, I've written a couple times about the Bush administration's hypocrisy in going after only the journalists it considers anti-Bush in the Plame case, including in the posting Dan refers to here.

It's astonishing that they can use the courts this way and leave the journalists who actually played the role they desired, like Novack, comfortably ensconced in their Northern Virginia homes while hauling their peers to jail.

It's more amazing that Novack the journalist is quiet, since he should be defending journalist's protections and could without compromising his sources—the only explanation is that he and other right-wing functionaries in the press believe they'll never be out of power and so need not worry that they may land in prison for practicing their craft.

That's frightening both for what it says about the Right's intentions and the right-wing pundits' naivete, since such convenient fools usually run afoul of their masters eventually.

Charlie Gordon

Aw, gee, Dan

You guys made me go look it up... again:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Test and lengthy [excellent] discussion of the writing, editing and amending [and the writers, editors and amenders] here:

Too bad it no longer applies. One can only hope for sometime in the future.


Felicia, thanks for the references. I was in the biz for 20 years, never gave up a source but never thought I could cloak myself in the First Amendment. We did have good lawyers, though. Interesting, I guess the right to free speech is by default also the right not to speak.

I looked at it (and still do) as something equivalent to patient/doctor or client/lawyer confidentiality.

I think many on the bench respect the reporter/confidential sources relationship because to unravel it is to neuter the reporters, one by one. Unfortunately, of course, there are politicians sitting on the bench now who specifically *want* to neuter the press, and they'll be working on that task today.

My main point regarding your original comment is that, rather than removing real or perceived "rights" or "priviledges" now enjoyed by some journalists, the public and the task of presenting truth/news/commentary would be better served if those rights and priviledges are extended to the amateur class, i.e. bloggers.

There are some problems with this, of course. Some of the "priviledges" granted reporters that the rest of the public don't enjoy include good seating at government functions, such as legislative sessions, city councils, etc. The rationale is that there's limited seating, and members of news organizations are (were?) supposed to act as the eyes and ears of the public, therefore the public's designated eyes and ears get to sit in the press box up front.

When every other member of the public wants to function as the public's eyes and ears, there's going to be jousting for the good seats.


TO correct myself, actually I wrapped myself up in the First Amendment all the time, just never as the reason why sources would not be disclosed.

Mitch Ratcliffe

Loid -- To clarify my comment, it is usually critics—particularly those of the "liberal media"—that paint reporters as wrapping themselves in the First Amendment. Everyone enjoys a right to be secure in their homes and papers, though we have to wait to the Fourth Amendment to get to them; the combination of freedom of the press and the Fourth Amendment implies that the privileges of the press extend to everyone in an environment where anyone can publish to reach an audience.

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