A prominent blogger, great friend of this blog and all around great person (pssst it's atrios) questions what some of us are saying about the denial of cert by the SCOTUS on the Miller, Cooper subpoenas.
Atrios expresses skepticism on claims of absolute privilege for reporters. I express more. There is no ABSOLUTE privilege. There is a privilege, but it is rebuttable - it can be overcome. I refer particularly to the construct laid out by Judge Tatel in his concurrence.
He also expresses skepticism that this is good test case. But that is not how I view it. It stands as the law in the DC Circuit, where the federal governemnt does most of its business. That's what makes it important, not as a test case.
Finally, atrios writes:
There are also those who continue to want to draw the distinction between "journalists" and "other people." As someone who's about to go testify to the FEC and argue that what I do doesn't differ in any important way from what other players in the "legitimate" media do I find this very troubling. Journalism is not what people are, it's what they do.
I could not agree more and ask that atrios consider this statement from Judith Miller's attorney, Floyd Abrams:
TERENCE SMITH: Who is a reporter, you mean?
VICTORIA TOENSING: I'm sorry. Who is a journalist, who qualifies to protect the source? The New York Times, sure, these are all Floyd's kinds of clients, but what about a freelance journalist? What about a blogger?
TERENCE SMITH: Well, what about a blogger, Floyd Abrams?
FLOYD ABRAMS: I was asked that today, and I said as I say here, I think a blogger ought to be protected also. It seems to me that the purpose of this privilege is to protect the people who play a function in American life.
It's not to protect reporters as such. It's to protect people who gather information and disseminate it on a widespread basis to the public. So I think eventually if there is a privilege, and that's one of the things the court's going to deal with, but if there is a privilege here, whether it's rooted in the First Amendment or what's called federal common law, I think it should apply to bloggers as well.
I wrote that:
Of course this is absolutely correct and applies to the new FEC regulations as well.
Carol Darr, who pretends to know something about journalism, should take heed from Floyd Abrams, one of the preeminent First Amendment lawyers in the country.
See? Even when we disagree, we really agree.