Thanks to the recent case involving a blogger who was ordered to pay $2.5 million to an investment firm she wrote about, the evolving debate about bloggers as journalists rages on. The judge in the case ruled Crystal Cox is not entitled to protections afforded to journalists. Courts have not been definitive in their determination of whether bloggers should be entitled to laws that have been passed to protect journalists. This is an important and hotly contested issue because while blogs have traditionally served as personal diaries and sounding boards for opinions, many bloggers have lost their amateur status. In fact, bloggers are breaking news, sniffing out under-the-radar stories, and in the process challenging mainstream media. Remember the scandal surrounding Dan Rather and another involving Trent Lott?

Indeed, some bloggers share many of the same traits as journalists and carry out the traditional act of journalism. However, this does not mean all bloggers are journalists. This shifting role of bloggers has led to a debate about whether they should share the same privileges as journalists, in particular shield law protection. Shield laws protect journalists from having to identify confidential sources. Without such protection, whistleblowers, for example, would be less likely to come forward and reveal stories of significant public importance.

Should this privilege, originally intended for journalists working for traditional media outlets, be extended to bloggers? Yes, in some cases. It should make no difference if they work for a mainstream media outlet or perform the journalistic duty via a blog. However, I believe bloggers wishing to seek such protection need to demonstrate that they perform the act of journalism, just as traditional journalists must prove. Therefore, a shield law extension hinges on the definition of who is a journalist.

Applying an appropriate test to determine who is a “journalist”

As courts grapple with extending protection to bloggers, the test articulated in Von Bulow v. Von Bulow (1987) should be taken into serious consideration. Under the test, protection would be extended to a blogger if he or she was functioning as a journalist and intended to disseminate information from the beginning of the newsgathering process. The Von Bulow court noted that prior professional journalism experience is relevant. But, the court also held that the manner of distribution of the information does not need to be through traditional press. The test rightly makes a determination based on intent and motivation in newsgathering, not affiliation with a news organization.