"journalist and confidential source" privilege? not today

The D.C. Circuit today issued an opinion styled "In re Grand Jury Subpoena, Judith Miller," holding that Ms. Miller and certain other journalists must answer questions put to them at the grand jury, despite their contention that the questions would violate some sort of privilege for journalists and their confidential source. The investigation, of course, is the one regarding Novak/Plame, involving the disclosure of the identity of a CIA agent. Haven't fully read it yet, but the Court seems to be saying that there is no such First Amendment privilege, and if there is any such privilege at common law it is not an absolute one and has been overcome in this case.

[UPDATE: Bloggers and blog-lovers may be amused by the discussion of blogs at pp. 6-7 of Judge Sentelle's concurring opinion]. Quote inside:

The discussion of blogs comes in Judge Sentelle's argument that there is no common law privilege at all, because (among other things) there's no clear definition of who's a journalist these days and anyway why should they get more protection than the rest of us:

Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?

Comments

[S.cuts]

I think that is an unnecessarily negative stereotype of bloggers. I will have the judge know that I usually blog in a coat and tie. My shoes are shined. Often I hold my glasses in dignified manner when finding a link.

[sam heldman]

By contrast, I will admit that I am blogging this, mid-afternoon, unshowered and unshaved. This is what happens when you practice law in a home office, at least if you are me.

[rea]

One day I took 3 minutes and started a web log in my pajamas. What it was doing in my pajamas I'll never know . . .

[sam heldman]

damn, I had tried hard to think of a joke using that line, but couldn't come up with anything. that is why my blog posts are boring.

[Steady Eddie]

rea-- Wish I'd thought of that notwithstanding Groucho Marx thought of it 70 years ago.

Sam-- You'll have noticed, of course, that Sentelle's argument about "why not call bloggers journalists?" adds nothing to his position against a common law privilege, because the answer to his scenario is Tatel's position -- that whatever privilege there might be doesn't apply to this kind of leak.

I know he's Jesse Helms' and Ken Starr's guy and all that, but is he generally that dumb?

[Gene Vorobyov]

http://sfattorney.typepad.com/law/2005/02/dc_circuit_cour.html