In an October 24, 2005 editorial, So who should you call a journalist?, Declan McCullagh of CNet explored the role of bloggers in journalism.

The Justice Department took a swipe at the leading shield proposal (H.R.3323/S.1419) during a Senate hearing last week, arguing that it would let criminals pose as bloggers.

"As drafted, the definition invites criminals to cloak their activities under the guise" of a journalist, warned Chuck Rosenberg, a U.S. Attorney in Texas. "The definition arguably could include any person who sets up an Internet 'blog.'" (It covers anyone who publishes an electronic "periodical.")

Sen. John Cornyn, a Texas Republican, seemed to be sympathetic to that argument. "The relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," Cornyn said.

Even the original sponsor of the Senate shield proposal, Richard Lugar, R-Ind., recently indicated that bloggers will "probably not" be deemed journalists.

It seems to me that the problem lies in defining “bloggers” as "journalists" much the same way that not all painters are necessarily artists, and not all typists are necessarily writers. The blogging phenomenon stems from a relationship between social networking and multimedia publishing technologies that includes a vast array of genres from incoherent meanderings to hard core muckraking.

When Armstrong Williams was outed for whoring his journalistic integrity by accepting payments to tout the Bush administration’s “No Child Left Behind” policy, he attempted to justify his actions by distinguishing between reporters and columnists, suggesting that someone like New York Times’ Maureen Dowd might not be held to the same journalistic standards as Judith Miller. (And as Dowd recently pointed out, after an embattled Miller blamed her misinformation on her sources, investigative reporting is not stenography.)

Defining bloggers as group automatically excluded from First Amendment protections afforded to wealthier organizations not only will "unreasonably elevate corporate-sponsored journalism over independent muckraking," as McCullagh points out, but would give a media organization like National Enquirer or Star greater First Amendment protection than individuals like Juan Cole (www.juancole.com) or even sites, however misguided, like blogsforbush.com. And who would dare suggest that an Arianna Huffington is less deserving of First Amendment protection than Judith Miller?

McCullagh quoted:

John Cornyn’s assertion that “the relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," is laughable. As if brick, mortar and ink somehow engender responsibility. Tell that to Richard Jewell or the family of JonBenet Ramsey.

As for Chuck Rosenberg’s suggestion that “as drafted, the definition invites criminals to cloak their activities under the guise” of a journalist, the government has argued against the very transparency Rosenberg appears to advocate.

In United States v. ApolloMedia, the government first argued that although my former company, ApolloMedia, was a bona fide media company I was “not a representative of the ‘press’ but rather a participant in the investigatory process because its web site was used as the vehicle to deliver a threat” and that because of my demand to publish the information related to both the investigative process and gag order, the United States would offer to “allow Sealed Appellant I to ‘print, publish, disseminate or post on the Internet a redacted version of Magistrate Crone's June 16, 1999, Order.”

If anything, it seems that for those “bloggers” who tend to write about newsworthy current events or publish information they have gathered, there is a glut of information, and the evidence suggests most are inclined to reveal too much information rather than abuse any First Amendment protections currently available to “cloak” their activities.

Until there is legislation that specifically prohibits “bloggers” (once defined) from receiving full First Amendment protections available to any other individuals or entities, I believe people should operate on the assumption that they are equally protected.

To define and then penalize a group of citizens based on the technology they use to publish and the data presentation styles of their information seems not only ill advised, but constitutionally precarious.