Blog sweat and fears

My fellow bloggers and I are concerned that our budding (albeit impecunious) cottage industry will be turned into cottage cheese if we are not adjudged to be journalists in the eyes of the law.

Given the low esteem in which the general public holds journalists, I can't help but recall Groucho Marx saying he didn't want to be the member of any club that would have him. Had Groucho lived to see this day, however, he would have been tickled by the frank and full-throated, full-monty and sometimes just plain full-of-it discourse enabled by modern technology.

The very success of this potent, home-brewed medium has placed citizen journalists on a potential collision course with the law. Blogging is too new to fit into the classic media paradigms and standard legal boilerplate. And it is too noisy -- and nosey -- to ignore.

So, it was only a matter of time until we got to the point where we are today. A confluence of coincidental, unsettling developments rightfully has rocketed the Blogger Threat Level Index into the red zone. This is not a drill:

Threat Level One

Bradley Smith, a member of the Federal Election Commission suggested last week in a CNET interview that blogs may come under campaign-finance guidelines that, theoretically, could put a dollar value on every mention (even unfavorable) of a candidate's name by any blogger. If the campaign-finance cops at the FEC decided a blogger contributed more than his legal limit to a candidate's campaign, he would be in violation of the law.

Campaign-finance laws exempt newspapers, broadcasters, magazines and other "periodicals" from having their work counted as paid political contributions under the law, including any content they carry on their web sites. But Internet publishers not affiliated with the aforementioned exempt media are left out. Until recently the FEC explicitly exempted from enforcement unaffiliated Internet publishers, like bloggers. But a federal judge has told the FEC it did not have the authority to establish the exemption, so the FEC is tussling over what to do.

Theoretically, therefore, the FEC could force a blogger to (a) add up the cost of her computers, software and the electricity to run them, (b) divide the total operating costs by the number of minutes in a year used to write a particular item and (c) multiply the operating cost by the number of people who saw the blog. This sum would be the value of the blogger's "political contribution"; an excessive contribution would violate the campaign-finance law.

Apart from the chilling possibility that writers would be compelled to perform complex math calculations, this is also an appalling potential infringement on free speech, which, last time I checked, was still protected by the First Amendment of the Constitution, viz:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Now, I am just a poor country boy who isn't even a six-figure constitutional lawyer, but I see blogs as being protected three or four ways by the above language, and even one more, if you happen to be writing about religion.

In the aftermath of the excitement engendered by Mr. Smith, another of the five FEC commissioners, Ellen Weintraub, offered some comfort in an op-ed at CNET. "I can't speak for my colleagues," she said. "But I'm not aware of anyone here who views this rulemaking as a vehicle for shutting down the right of any individual to use their electronic soapbox to voice their political views."

Grammatical errors aside, let's hope she's right.

Threat Level Two

The folks at Apple took valuable time away from picking new iPod colors to ask a court to require three blogs to provide the names of individuals who leaked proprietary data they published. The judge agreed with Apple, stating that "theft and use of trade secrets is a crime."

This case is alarming, because it seems to provide precedent and comfort to those who would thwart bloggers by making them reveal the sources of confidential information. Journalists working for conventional media generally -- but not always -- are shielded by law from having to reveal their sources.

The problem in the Apple case is that we don't know if the proprietary information was published (a) by employees who contractually were bound to protect the company's secrets; (b) bloggers who illegally pilfered Apple's dumpster, or (c) upstanding citizen journalists printing information gained in good faith from confidential sources.

In the first two scenarios, journalistic privilege doesn't apply. Theft, as the judge said, is theft. In the last scenario, bloggers deserve the same protections afforded to their sisters and brothers in broadcast and print. Come to think of it, even those protections are less than ironclad.

Even as we speak, the New York Times and Time magazine are being forced to defend their sources in the case in which some White House operative(s) evidently exposed a woman as a CIA undercover agent because her husband opposed the Iraq invasion. Revealing the name of a covert spy is a federal felony.

The special federal prosecutor trying to learn who blew the spook's cover has threatened to jail two reporters who may have been contacted by the folks peddling the story, but who, significantly never revealed the spy's name. One of them never even wrote a story.

With professional journalists nowadays as much at risk as citizen journalists, we all had better hang together. Or, as Benjamin Franklin said, assuredly we shall all hang separately.