After all, once you exempt “the press” from the laws that apply to the rest of us, you then get into the question of who qualifies as a “journalist”. Take this case here.

A lawyer trying to get an Internet writer to testify and turn over notes for a court case says Web bloggers shouldn't have the same rights as mainstream reporters.

Attorney William McCorriston, in a lawsuit brought by landowner James Pflueger over the failure of the Kaloko Dam, claims that Malia Zimmerman of Hawaiireporter.com is a blogger who isn't entitled to withhold her sources of information.

But Zimmerman, an editor and reporter for the Web site, says she is a legitimate journalist, not just some hack who offers half-baked commentary on the news of the day.

"Any journalist who gives their word that they'll protect somebody's information or keep them in confidence, you have to abide by that," Zimmerman said. "It's not the medium you publish in, it's what you do with that information."

Hawaii Circuit Court Judge Gary Chang has ordered Zimmerman to submit to questioning under oath by McCorriston, likely in June. She can refuse to answer questions, but she must explain her reasons for doing so, and the judge would later rule on whether she's justified.

Hawaii does not have a journalist shield law like those enacted in 31 states to protect reporters' rights to keep their sources confidential.

That means there will be two issues for Chang to decide: whether Zimmerman is a bona fide journalist, and whether reporters have a qualified privilege to refuse providing confidential information to lawyers in a civil case.

Now letÂ’s be real honest about this website here -- Hawaiireporter.com posts lots of news, including original content, along with commentary. Zimmermann tries to differentiate herself from bloggers in tone and content and does not consider her site to be a blog. Furthermore, she has worked with major media on stories in the past in her capacity as a journalist covering stories like the one that is at the heart of this matter.

But that really begs the question. In a day and age in which anyone can set up a website and establish themselves as proprietor and publisher of a news/opinion site, does the distinction between blogger and journalist really make sense – or is it purely arbitrary? This leads to the great conflict at the heat of this case involving the newest form of information media.

On the one hand, the plaintiffÂ’s attorney raises the specter of anyone being able to flout a subpoena if bloggers qualify as journalists.

"It seems to me that if a blogger is a journalist, everyone can produce a blog and never be subject to a subpoena," McCorriston said. "Are all bloggers journalists? It's a question that's never been answered anywhere."

On the other hand, if there is some legitimate basis for a reporterÂ’s privilege, why shouldnÂ’t bloggers and internet journalists like Zimmermann qualify?

"She's far more than a blogger. She's got an institutional publication. It just happens to come out on a computer," said Zimmerman's attorney, Jeff Portnoy. "She's not just sitting at home and every couple of days writing a note to people."

One constitutional law professor sees the case as having serious implications.

The courts will have to weigh how press freedom extends to the realm of the Internet, said Jon Van Dyke, a University of Hawaii constitutional law professor.

"How does she differentiate herself from the zillions of other people who use the Internet, posting things on MySpace or whatever?" he asked. "If we're going to give special protection to the press, we should have some idea of who's in it and who's not."

And therein is precisely the heart of the issue – if such a privilege is created, who is in and who is out? How does one differentiate between Zimmermann and A reporter for the New York Times? Between a news and commentary blogger like myself and a “serious journalist” like Robert Novak? Where does one draw the line – and how – without being fully arbitrary in the process?

Frankly, I there can be only two legitimate outcome. Either every blogger qualifies as a journalist/reporter for purposes of press shield laws – or press shield laws must fall on the basis that they do not provide equal protection of the law to all citizens.

Posted by: Greg at 01:24 PM | No Comments | Add Comment
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