NIU J480 Media Law assignment. DeKalb, IL -- April 2008.

1. Ilona Meagher
J480: Mock Trial #4
Northern Illinois University
April 15, 2008
Argument for the prosecution, key question #2: Is the defendant in this case a journalist?
This case is of vital importance. Not only for the defendant, a political
blogger fighting the subpoena of his notes, but for our grasp on the free
speech and free press rights and privileges of those who participate in the
activity of journalism as set forth in the First Amendment to the
Constitution. To determine if the defendant in this case is a journalist, we
should first look at the benchmark Supreme Court opinion in 1972’s
Branzburg v. Hayes case.
While ruling the reporter in that case had no special protective
privilege and, therefore, compelling him to divulge his sources was not a
violation of his First Amendment rights, the Court stated that attempting to
nail down “a constitutional newsman's privilege” and defining who it
would and wound not belong to is “a questionable procedure in light of the
traditional doctrine that liberty of the press is the right of the lonely
pamphleteer…just as much as of the large metropolitan publisher.”i The
Court continued, saying, “The press in its historic connotation
comprehends every sort of publication which affords a vehicle of
information and opinion.” ii
And so, in the view of this decision, blogs and
bloggers should be considered a part of the press in a constitutional and
historic sense since they are a “vehicle of information and opinion.”
While we will argue that those who participate in the activity of
journalism should have some protections in order to allow them the

2. security to do their work, we believe – as the Branzburg Court believed –
that these protections come not as a result of their status of ‘professional
journalist with a traditional news organization,’ but rather as a result of
their undertaking journalistic activity with the aim of adding information to the
public sphere and participating fully in the exchange of ideas necessary for
a vibrant democracy. 1978’s First National Bank of Boston v. Bellotti case addressed
this issue head on. It’s majority opinion ruled that “the Framers did not
intend to limit the freedom of the press to one select group…the press
does not have a monopoly on either the First Amendment or the ability to
enlighten.” Citing Lovell v. Griffin – where freedom of the press was deemed
a “personal right” and not an “institutional” right – the Court said that
“the very task of including some entities within the ‘institutional press’
while excluding others… is reminiscent of the abhorred licensing system of
Tudor and Stuart England -- a system the First Amendment was intended
to ban from this country.” iii
Therefore, whatever constitutional protections
journalists can claim in order to do their work is derived from the Speech
Clause, not the Press Clause, of the First Amendment. This is an important
point in light of the remarkable changes that are taking place in the news
media landscape, all comers now having access to publishing their
opinions and collected information online at very little cost. We must
understand where whatever protection exists is derived from, even more
so today than when publishing opportunities were more broadly limited
and out of reach of the masses.
In the real world, the press does have certain privileges that the rest
of us do not enjoy. They go to restricted war zones or roped-off crime

3. scenes when others are barred. They are also given special priority and
status by our government institutions: the White House, the Congress,
even the Supreme Court offers them preferential seating at official
hearings and access to dedicated office space from which they can file
their reports.iv But this favoritism does not stem from the First Amendment.
If it were, then the barriers keeping citizen journalists out from these
positions would not be eroding as they are today. Examples of this
erosion include the credentialing of bloggers for the Republican and
Democratic National Conventions in 2004 – and higher numbers are
expected this year. On March 7, 2005, the White House credentialed its
first blogger for its daily briefing.v In 2007, the Capitol Correspondents
Association of California credentialed its first blogger to cover its state
legislature, vi
the same year the U.S. Supreme Court allowed bloggers to
cover the Scooter Libby trial.vii
Pennekamp v. Florida ruled that “the purpose of the Constitution was not
to erect the press into a privileged institution but to protect all persons in
their right to print what they will as well as to utter it.” viii
The First
Amendment, with its Speech Clause and Press Clause, is meant to protect
everyone’s “right to print.” That implies action, not status, and it applies
to blogger, political pundit, poet, author and professional journalist alike.
‘Journalist’ merely describes what one does – not what one is. Indeed,
the first school of journalism opened its doors in 1908, well after the
Constitution’s First Amendment set down its protections in 1791. Who did
the Press Clause aim to protect between 1791 and 1908 if we are to
believe today only ‘professional journalists’ should benefit from it? It is

4. unfortunate that the Supreme Court has not yet ruled clearly on a case
such as the one before it today. We need specific and targeted guidance
on these matters. In lieu of its guidance, we can turn to the U.S. Court of
Appeals for the 3rd Circuit, which has developed a relevant test for what
journalism is in Titan Sports, Inc. v. Turner Broadcasting: In re Madden. In its decision, it
turned to a previous case, stating, “In von Bulow v. von Bulow, the Court of
Appeals for the Second Circuit identified the principles underlying the
application of the journalist's privilege. First, the court recognized that the
process of newsgathering is a protected, albeit qualified, right under the
First Amendment.” They believed a journalist’s rights came from a
“strong public policy supporting the unfettered communication of
information by a journalist to the public.” In our case, our defendant was
exercising this right to provide important information to the public when he
reported on the activities of the underground activist group, Real
Democracy Now (RDN). ix
The 3rd Circuit’s decision continues: “Second, the court required a
true journalist, at the beginning of the news-gathering process, to have the
intention of disseminating her information to the public.” This second
requirement is also met by our defendant. He is a known political blogger
and clearly had been engaged in the activity of journalism. He was not
merely in the area, happening upon the destruction of public buildings with
graffiti; he had intended to be there in order to cover the story and events.
The third element of the 3rd Circuit’s test is also met by the defendant:
“Third, the court stated that an individual may successfully claim the
journalist's privilege if she is involved in activities traditionally associated

5. with the gathering and dissemination of news, even though she may not
ordinarily be a member of the institutionalized press.” In closing, the 3rd
Circuit said, “We hold that individuals are journalists when engaged in
investigative reporting, gathering news, and have the intent at the
beginning of the news-gathering process to disseminate this information
to the public.” Clearly, that was the intention of the defendant in this case,
and therefore, any protections that are afforded journalists must also be
given to the defendant in this case.

6. i
“Branzburg v. Hayes,” Oyez, Accessed Apr 9, 2008, http://www.oyez.org/cases/1970-1979/1971/1971_70_85/
ii
Ibid.
iii
“First National Bank of Boston v. Bellotti,” Justia, Accessed Apr 13, 2008,
http://supreme.justia.com/us/435/765/case.html
iv
Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age,
(New York: Free Press, 2007), p.87-88
v
Katharine Q. Seelye, “White House Approves Pass for Blogger,” New York Times, March 7, 2005, Accessed Apr 13, 2008,
http://www.nytimes.com/2005/03/07/technology/07press.html
vi
Frank Russo, “First "Blogger" Gets Press Credential With Blessing of Capitol Correspondents Association of California,”
California Progress Report, March 9, 2007, Accessed Apr 13, 2008,
http://www.californiaprogressreport.com/2007/03/first_blogger_g.html
vii
Noel K. Gallagher, “Blogger gets OK to attend trial of Scooter Libby,” Morning Sentinel, January 13, 2007, Accessed Apr
13, 2008, http://morningsentinel.mainetoday.com/news/local/3510973.html
viii
“Pennekamp v. Florida,” v|lex, Accessed Apr 13, 2008, http://vlex.com/vid/20015623
ix
“Titan Sport, Inc. v. Turner Broadcasting,” FindLaw, Accessed Apr 14, 2008,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/3rd/981932p.html&friend=public