Orin Kerr read through the ruling that Judith Miller and Matthew Cooper have no First Amendment right not to testify in the Plame investigation and finds this nugget:
Nor does it matter that unconventional forms of journalism—freelance writers and internet “bloggers,” for example—may raise definitional conundrums down the road. See sep. op. at 5-9 (Sentelle, J., concurring); but see Eugene Volokh, Opinion, You Can Blog, But You Can’t Hide, N.Y. Times, Dec. 2, 2004, at A39 (“[T]he rules should be the same for old media and new, professional and amateur. Any journalist’s privilege should extend to every journalist.”). As Jaffee makes clear, “[a] rule,” such as Rule 501, “that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner.” 518 U.S. at 18. After all, “flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.” Hurtado v. California, 110 U.S. 516, 530 (1884). Here, whereas any meaningful reporter privilege must undoubtedly encompass appellants Cooper and Miller, full-time journalists for Time magazine and the New York Times, respectively, future opinions can elaborate more refined contours of the privilege—a task shown to be manageable by the experience of the fifty jurisdictions with statutory or common law protections.
So, we have a blogger citing another blogger citing a judge citing other judges plus an op-ed written by a lawyer-blogger in the NYT. Definitional conundrums, indeed.
