15 Feb 2005 The Volokh Conspiracy, The First Amendment, and Mafia Dons

I agree with Judge Sentelle’s observations (as covered by Orin Kerr at the Volokh Conspiracy) about applying a First Amendment privilege not to testify to reporters:

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?

I said something very similar here, thereby earning this blog a #1 spot on Google for the term “mafia dons.”