Waldo Jacquith, the Virginia blogger targeted with an outrageously broad subpoena back in January (see my previous post), filed a brief last week arguing that he should not be required to turn over the IP addresses of those who viewed and commented on an article posted to his blog, as well as his email correspondence relating to the article. Paul Alan Levy of Public Citizen, Josh Wheeler of the Thomas Jefferson Center, and Rebecca Glenberg of the ACLU of Virginia filed an excellent brief on behalf of Jacquith, arguing that the requested information is irrelevant, that the qualified reporter's privilege recognized in Virginia courts protects the information from disclosure, and that the commenters have a First Amendment right to remain anonymous.
Most notably, the brief argues that bloggers who perform journalistic functions should enjoy the same privilege for sources and unpublished information that traditional journalists do:
In an era when an increasing amount of news coverage can exclusively be found online, and when even traditional newspapers like the Christian Science Monitor are moving to an exclusively online publication, there is no basis for drawing an artificial line confining the reporter's privilege to print and broadcast publications while excluding bloggers like Jacquith.
Jacquith makes a good standard-bearer for this argument because he engages in clearly journalistic functions. In the article at issue, he independently obtained quotes from Hook editor Hawes Spencer and critiqued another news source for its coverage. More generally, Jacquith engages in investigative reporting -- in the past, his work has "uncovered government wrongdoing and resulted in corrective action," according to the brief.
Given the enormous changes taking place in the production, distribution, and consumption of news, I whole-heartedly agree that there is no principled basis for excluding bloggers and other online publishers from the protections enjoyed by other journalists, so long as they carry out similar functions. I bet we'll be seeing a lot of this argument in the future.
For background information and links to the underlying documents, see our database entry, Garrett v. Jacquith.