MUCH HAS changed in how citizens get their news. They learned of pro-democracy demonstrations in Iran because individuals, unaffiliated with the mainstream media (which had been denied access to the streets), could avoid government censors and send Twitter messages and cellphone pictures around the world.
But as with any new communication technology, existing law must adapt. Nowhere is this more true than in an area central to the effective functioning of the media - the reporter’s privilege. Every state (except Wyoming) provides journalists a privilege to refuse to identify confidential informants when subpoenaed, but with significant variance in scope and applicability. This privilege needs to be expanded to include some members of the electronic media.
The lone reporter’s privilege decision from the Supreme Court in Branzburg v. Hayes in 1972 , provided scant guidance because the Court divided 4-4, with a Delphic concurring opinion leading to disarray in the lower federal courts, while efforts over the decades to pass a federal shield have failed.
This crazy-quilt of law creates great uncertainty for investigative reporters, who insist that absent a promise of confidentiality, sources will be reluctant to speak, compromising the ability to reveal the inner workings of government. The jailing of Judith Miller from The New York Times and Matthew Cooper from Time underscores the risk of contempt citations and even incarceration that face reporters who rely upon confidential sources in the present legal and political environment.
Fortunately, the Obama administration, unlike its predecessor (which raised the specter of terrorists publishing on the Internet and then using a reporter’s privilege to avoid compelled testimony), supports passage of a privilege. The House passed such a bill in March and a similar proposal is before the Senate Judiciary Committee.
A key point of contention involves who would be covered by the shield law, especially given the explosion of digital media. In the past two decades we have seen the traditional media migrate to the Web, and the rise of publications that are analogous to newspapers or magazines but that appear only in electronic format, such as the Huffington Post and the Drudge Report. Further afield, there are millions of blogs, websites, and social-networking websites, like Facebook and Twitter.
Some of these grassroots-level purveyors of information have been first responders to important events, breaking stories involving missteps by candidate Obama (reported by a “citizen journalist’’ from “OfftheBus’’), discriminatory statements by Senator Trent Lott (broken by talkingpointsmemo.com), and seamy aspects of the Clinton-Lewinsky scandal (Matt Drudge), to name a few of the important stories that came to light because of nontraditional media.
Recognizing that e-zines and other forms of digital media have become an important part of the national debate, both federal proposals (though virtually no state law) would extend protection to a person who “regularly’’ gathers or publishes news. This would be a great improvement, extending protection to the most important electronic sources of news, while stopping short of privileging everyone who publishes on the Internet - the so-called “pajama-clad blogger.’’
However, the version passed by the House contains additional restrictions that say the shield only is available if the person asserting the privilege works for “a supervisor, employer, parent, subsidiary, or affiliate’’ and receives “substantial’’ financial gain from reporting. This approach means that protection may not extend to “citizen journalists’’ who are closest to events and who can be the source of critical information.
These restrictions are not included in the Senate bill, which has bipartisan support. Hopefully, the Senate bill will carry the day, and the fearless reporting that characterized the pre-Internet era will continue in the fast, accessible, and interactive digital world.
David A. Logan is dean and professor of law at Roger Williams University School of Law. 
