Ilona MeagherJ480: Mock Trial #4Northern Illinois UniversityApril 15, 2008

Argument for the prosecution, key question #2: Is the defendant in this case a journalist?

This case is of vital importance. Not only for the defendant, a political blogger fighting the

subpoena of his notes, but for our grasp on the free speech and free press rights and privileges of

those who participate in the activity of journalism as set forth in the First Amendment to the

Constitution. To determine if the defendant in this case is a journalist, we should first look at the

benchmark Supreme Court opinion in 1972’s Branzburg v. Hayes case.

While ruling the reporter in that case had no special protective privilege and, therefore,

compelling him to divulge his sources was not a violation of his First Amendment rights, the Court

stated that attempting to nail down “a constitutional newsman's privilege” and defining who it

would and wound not belong to is “a questionable procedure in light of the traditional doctrine that

liberty of the press is the right of the lonely pamphleteer…just as much as of the large metropolitan

publisher.”i The Court continued, saying, “The press in its historic connotation comprehends every

sort of publication which affords a vehicle of information and opinion.” ii And so, in the view of this

decision, blogs and bloggers should be considered a part of the press in a constitutional and historic

sense since they are a “vehicle of information and opinion.”

While we will argue that those who participate in the activity of journalism should have

some protections in order to allow them the security to do their work, we believe – as the

Branzburg Court believed – that these protections come not as a result of their status of

‘professional journalist with a traditional news organization,’ but rather as a result of their

undertaking journalistic activity with the aim of adding information to the public sphere and

participating fully in the exchange of ideas necessary for a vibrant democracy. 1978’s First National

i “Branzburg v. Hayes,” Oyez, Accessed Apr 9, 2008, http://www.oyez.org/cases/1970-1979/1971/1971_70_85/ii Ibid.

Bank of Boston v. Bellotti case addressed this issue head on. It’s majority opinion ruled that “the

Framers did not intend to limit the freedom of the press to one select group…the press does not

have a monopoly on either the First Amendment or the ability to enlighten.” Citing Lovell v. Griffin –

where freedom of the press was deemed a “personal right” and not an “institutional” right – the

Court said that “the very task of including some entities within the ‘institutional press’ while

excluding others… is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a

system the First Amendment was intended to ban from this country.” iii Therefore, whatever

constitutional protections journalists can claim in order to do their work is derived from the Speech

Clause, not the Press Clause, of the First Amendment. This is an important point in light of the

remarkable changes that are taking place in the news media landscape, all comers now having

access to publishing their opinions and collected information online at very little cost. We must

understand where whatever protection exists is derived from, even more so today than when

publishing opportunities were more broadly limited and out of reach of the masses.

In the real world, the press does have certain privileges that the rest of us do not enjoy.

They go to restricted war zones or roped-off crime scenes when others are barred. They are also

given special priority and status by our government institutions: the White House, the Congress,

even the Supreme Court offers them preferential seating at official hearings and access to dedicated

office space from which they can file their reports.iv But this favoritism does not stem from the First

Amendment. If it were, then the barriers keeping citizen journalists out from these positions would

not be eroding as they are today. Examples of this erosion include the credentialing of bloggers for

the Republican and Democratic National Conventions in 2004 – and higher numbers are expected

this year. On March 7, 2005, the White House credentialed its first blogger for its daily briefing.v In

iii “First National Bank of Boston v. Bellotti,” Justia, Accessed Apr 13, 2008, http://supreme.justia.com/us/435/765/case.htmliv Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, (New York: Free Press, 2007), p.87-88v Katharine Q. Seelye, “White House Approves Pass for Blogger,” New York Times, March 7, 2005, Accessed Apr 13, 2008, http://www.nytimes.com/2005/03/07/technology/07press.html

2007, the Capitol Correspondents Association of California credentialed its first blogger to cover its

state legislature, vi the same year the U.S. Supreme Court allowed bloggers to cover the Scooter

Libby trial.vii

Pennekamp v. Florida ruled that “the purpose of the Constitution was not to erect the press

into a privileged institution but to protect all persons in their right to print what they will as well as

to utter it.” viii The First Amendment, with its Speech Clause and Press Clause, is meant to protect

everyone’s “right to print.” That implies action, not status, and it applies to blogger, political pundit,

poet, author and professional journalist alike. ‘Journalist’ merely describes what one does – not

what one is. Indeed, the first school of journalism opened its doors in 1908, well after the

Constitution’s First Amendment set down its protections in 1791. Who did the Press Clause aim to

protect between 1791 and 1908 if we are to believe today only ‘professional journalists’ should

benefit from it? It is unfortunate that the Supreme Court has not yet ruled clearly on a case such as

the one before it today. We need specific and targeted guidance on these matters. In lieu of its

guidance, we can turn to the U.S. Court of Appeals for the 3rd Circuit, which has developed a relevant

test for what journalism is in Titan Sports, Inc. v. Turner Broadcasting: In re Madden. In its decision,

it turned to a previous case, stating, “In von Bulow v. von Bulow, the Court of Appeals for the Second

Circuit identified the principles underlying the application of the journalist's privilege. First, the

court recognized that the process of newsgathering is a protected, albeit qualified, right under the

First Amendment.” They believed a journalist’s rights came from a “strong public policy supporting

the unfettered communication of information by a journalist to the public.” In our case, our

defendant was exercising this right to provide important information to the public when he

reported on the activities of the underground activist group, Real Democracy Now (RDN). ix

vi Frank Russo, “First "Blogger" Gets Press Credential With Blessing of Capitol Correspondents Association of California,” California Progress Report, March 9, 2007, Accessed Apr 13, 2008, http://www.californiaprogressreport.com/2007/03/first_blogger_g.htmlvii Noel K. Gallagher, “Blogger gets OK to attend trial of Scooter Libby,” Morning Sentinel, January 13, 2007, Accessed Apr 13, 2008, http://morningsentinel.mainetoday.com/news/local/3510973.html

The 3rd Circuit’s decision continues: “Second, the court required a true journalist, at the

beginning of the news-gathering process, to have the intention of disseminating her information to

the public.” This second requirement is also met by our defendant. He is a known political blogger

and clearly had been engaged in the activity of journalism. He was not merely in the area,

happening upon the destruction of public buildings with graffiti; he had intended to be there in

order to cover the story and events. The third element of the 3rd Circuit’s test is also met by the

defendant: “Third, the court stated that an individual may successfully claim the journalist's

privilege if she is involved in activities traditionally associated with the gathering and

dissemination of news, even though she may not ordinarily be a member of the institutionalized

press.” In closing, the 3rd Circuit said, “We hold that individuals are journalists when engaged in

investigative reporting, gathering news, and have the intent at the beginning of the news-gathering

process to disseminate this information to the public.” Clearly, that was the intention of the

defendant in this case, and therefore, any protections that are afforded journalists must also be

given to the defendant in this case.

viii “Pennekamp v. Florida,” v|lex, Accessed Apr 13, 2008, http://vlex.com/vid/20015623ix “Titan Sport, Inc. v. Turner Broadcasting,” FindLaw, Accessed Apr 14, 2008, http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/3rd/981932p.html&friend=public