1 U. Balt. J. Media L. & Ethics 186 (2009)
Bloggers after the Shield: Defining Journalism in Privilege Law

handle is hein.journals/ubjmleth1 and id is 190 raw text is: BLOGGERS AFTER THE SHIELD:
DEFINING JOURNALISM IN PRIVILEGE LAW
JASON M. SHEPARD
Josh Wolf claims to be the longest jailed journalist in American history
after courts rejected his journalist's privilege claims and he spent 226
days in prison. But was the blogger really a journalist entitled to invoke
privilege protections? Academics, journalists, lawyers, judges and
lawmakers have struggled to articulate legal definitions ofjournalism as
bloggers increasingly seek newsgathering protections. This article
evaluates controversies in state statutory interpretation, federal shield
law proposals and federal common-law development. The article argues
that the analytical evolution in federal and state case law supports
expanding privilege protection to bloggers whose purposes, processes
and products are similar to professional journalists' historical practices
and values.
Keywords: journalist's privilege, newsgathering, bloggers, journalism
I. INTRODUCTION
When blogger Josh Wolf left federal prison in April 2007 after being
incarcerated for 226 days, he boasted he was the longest jailed journalist in U.S. history
for committing journalism.' A year earlier, Judith Miller of the New York Times spent
85 days in jail until she agreed to testify about her confidential interviews with the chief
of staff to the Vice President of the United States. 2 And in 2001, an aspiring writer
Jason Shepard is an assistant professor in the Department of Communications at Califor-
nia State University, Fullerton (jshepard cifullerton.edu).
1 The statement was featured on his Web site, available at http://www.joshwolf.net/freejosh/ (item
dated Nov. 21, 2006; last visited Sept. 6, 2008).
2 In Re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005). For an overview of
the Miller case, See Marie Brenner, Lies and Consequences: Sixteen Words That Changed the
World, VANITY FAIR, April 2006, at 204. See also Lynn Duke, The Reporter 's Last Take,
WASHINGTON POST, Nov. 10, 2005; Don Van Natta, Jr., The Miller Case: A Notebook, A Cause,
A Jail Cell and a Deal, N.Y. TIMES, Oct. 16, 2005; Judith Miller, My Four Hours Testifying in the
Federal Grand Jury Room, N.Y. TIMES, Oct. 16, 2005; David Johnson and Richard W. Stevenson,
Cheney Aide Charged With Lying in Leak Case, N.Y. TIMES, Oct. 29, 2005; Statement of Patrick
J. Fitzgerald, He Wasn't Looking for 'a First Amendment Showdown,'Leak Prosecutor Says, N.Y.
TIMES, Oct. 29, 2005; FLOYD ABRAMS, SPEAKING FREELY, 289-304 (2006 ed.).
Journal of Media Law & Ethics, Volume 1, Numbers 3/4 (Summer/Fall 2009) 186

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