While not a legal blog, TechnoBuffalo.com may well appreciate some of the issues raised in defense of the First Amendment now that it finds itself on the back end of an Illinois decision compelling it to give up the identity of its source. Via the Chicago Sun-Times :

It’s become the legal and philosophical debate in the digital age of journalism: Does a blogger have the same legal rights as any journalist to protect an anonymous source?

Not in the case of a technology website where “confidential trade secret” information — furnished by an anonymous source — was posted weeks before the smartphone hit store shelves, Cook County Circuit Court Judge Michael R. Panter declared in a written order Friday.

That’s because the website, TechnoBuffalo.com — a mix of tech news, gadget reviews and blog posts — doesn’t qualify as a “news medium” defined by Illinois law, Panter wrote.

The problem is that under Illinois law, a blog, even one with 1 million readers per month which dwarfs many small town (even small city) newspapers, doesn’t qualify as news medium for the purpose of conferring the journalist privilege to protect sources.

State law defines a reporter as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium.” And a “news medium” is defined by the state as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation.” Television and radio news outlets are also defined under the law.

It seems that TechnoBuffalo received an anonymous tip about some Droid phone before it’s release, which apparently pissed off someone who cares about such things.  They wanted to know who the nasty tipster was, and asked Judge Panter to make it happen. 

While the decision here is somewhat Illinois-centric, based upon state law defining who is entitled to assert the privilege, the underlying problem presents a philosophical conundrum that continues to vex the blawgosphere.  Few of us think of ourselves as journalists per se, and rarely do we strut around town with pad in hand hounding out the news.  Heck, most bloggers don’t even have fedoras.

Yet, there are a plethora of rights and privileges that go hand in hand with the existence of a free press, not the least of which is the protection of  New York Times v. Sullivan, limiting defamation to malicious falsehoods, that we would most assuredly claim for ourselves if the need arose. For those who see neither reason nor justification to claim journalist standing, they either haven’t given it enough thought, or haven’t reached the point in their blogging where they realize the potential risks.  Much like the person who sees no reason not to let the cops search the trunk, since he has nothing to hide, it’s a big non-issue until it becomes an issue. Only then does the realization dawn on him that giving up any claim to protection probably wasn’t a smart idea.

Fortunately, and somewhat surprisingly, the Illinois Press Association has taken up arms in favor of TechnoBuffalo.com:

Don Craven, general counsel for the Illinois Press Association said: “If this same information had been published by the Sun-Times, clearly it would be subject to reporter’s privilege. And this [TechnoBuffalo] doesn’t sound like a fly-by night operation. So if it’s protected in the Sun-Times — in responsible mainstream media — why shouldn’t it be protected in a responsible blog?”

While it’s a good question, it’s unlikely to persuade the court.  After all, the same could be said for anyone who comes into possession of an anonymous bit of juicy information which they decide, even post hoc, to put on the internet.  Imagine if someone had put pics of the new Droid on twitter, no blog involved, via an anonymous tip, and claimed that the twit was entitled to privilege?  Maybe it should be, but it’s hardly a newspaper or periodical.  And if it received protection, then there would, by extension, be nothing on the internet that wouldn’t constitute press and be entitled to the journalist’s privilege.

The problem, of course, is that legal definitions take time to develop, and come about only in response to suits questioning them.  By the time they reach the appellate stage, where some court will consider whether an advance in technology satisfies criteria created at a time when it wasn’t so much as a twinkle in a legislator’s eye, it’s far too late for the party at hand, and far too late to address the status of technology at the moment.  Technology is moving far faster than any court or legislature, and the potential for definitions to meet not only what exists today, but what will exist tomorrow, is extremely limited.

The solution would seem to be laws and caselaw with a lot less modesty than has been the case in the past, giving substantial thought to what is happening not only in the case at hand, but in the present and future.  The decision of whether a blog is entitled to the protection given the press in general is one that needs to be made, both for the benefit of the courts as well as the benefit of bloggers, so we know where we stand and can conduct ourselves accordingly. 

For most of us (and for almost all the futurists who have long ago concluded that the “rules” that apply to the rest of society can be ignored when it comes to anything made by Apple or has an on-off button), we assume those protections despite the fact that the law hasn’t quite matched our expectations.  The fact is that bloggers don’t quite know what we are, and we pray we’re never put in the position of having to be the test case.

While the outcome of this Illinois suit may not apply to bloggers elsewhere, and courts continue to struggle with writing on the internets in its various permutations, it seems past due that a comprehensive understanding of what protection, if any, should be afforded bloggers be crafted.  Then again, given the concerns of those who cry about bullying, defamation, inaccuracy and the wealth of other evils that show up online every 37 seconds, the answer may well not be very protective at all. 

Even though some bloggers may feel that their writing is worthy of protection, it’s a big internet, and there are certainly plenty of blogs (and blawgs) whose “journalistic” standards are arguably below that worthy of protection.  And as we’ve seen with bar associations confusing flawging with blawging, it’s not at all clear that the decision-makers are sufficiently familiar with distinctions that matter a great deal to the blogosphere such that they’re equipped to make decisions that will have a huge impact on First Amendment rights now and going forward. 

There are excellent arguments to be made for conferring journalistic protections to the blogosphere, and some excellent argument against it as well. And as long as our online act remains something of a morass, it’s hard to say where it should come out, and where the line of protection should be drawn.  While favoring free speech, and risking the potential of an occasional impropriety, is the only viable choice, it’s likely that any decision made at this stage in the maturity of internet “journalism” won’t be quite so favorable.  And yet, working without a net on the ‘net makes blogging a risky business.