Is each of Twitter's 141 million users in the United States a journalist? How about the 164 million Facebook users? What about bloggers, people posting on Instagram, or users of online message boards like Reddit?
In 1972 — long before anyone had conceived of tweets or Facebook updates — the Supreme Court, in Branzburg v. Hayes, considered whether journalists have a special privilege under the First Amendment to withhold the identity of their sources. Paul Branzburg, a reporter in Louisville, Ky., had written a series of articles about drug use in Kentucky that included anonymous quotes from drug users and a photograph of a pair of hands holding hashish. A grand jury ordered Branzburg to reveal the names of his sources. He refused and was held in contempt.
In Branzburg's case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not. …
Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.
(H/T Lord Humungus)