WASHINGTON -- It was bad enough that a federal appeals court unanimously ruled last week that two reporters, Matthew Cooper of Time and Judith Miller of The New York Times, can be sent to jail for contempt of court if they don't identify the sources of their stories about the "outing" of a CIA operative married to a critic of the Bush administration. Floyd Abrams, the reporters' attorney, said that the decision of the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit "strikes a heavy blow against the public's right to be informed about its government," and most journalists would agree.

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

Unfortunately, there was more. In a separate opinion, one of the three judges also impugned the claim of Cooper, Miller and other mainstream to journalists to the professional, even priest-like, status reporters have claimed at least since Watergate.

Disputing the argument that reporters have a common-law as well as a constitutional privilege to protect confidential sources, Circuit Judge David Sentelle dusted off a question that haunts all discussions of reporter's privilege: Who is a journalist? "Are we then to create a privilege that protects only those reporters employed by Time Magazine, The New York Times and other media giants," Sentelle asked rhetorically, "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?"

I know and admire Matt Cooper; Floyd Abrams was my professor in a First Amendment course at the Yale Law School almost three decades ago. I understand the practical argument for protecting the confidentiality of sources, and I think compromising that principle is too high a price for establishing who in the Bush administration alerted columnist Robert Novak to the fact that Valerie Plame, wife of former diplomat Joseph C. Wilson IV, was an undercover officer.

Yet Judge Sentelle's question can't be dismissed. It's actually a variation on an old law school puzzler: Is the First Amendment freedom "of the press" a protection for an institution, as the late Supreme Court Justice Potter Stewart suggested in a famous 1974 speech? Or is it better viewed as freedom of speech for those who happen to print, rather than utter, their opinions?

The latter interpretation has the charm of clarity and consistency. It accords with what is sometimes called the libertarian theory of the First Amendment's Free Press Clause -- that it is basically a shield to protect the expression of opinion from punishment by the government after the fact. But the libertarian theory gets you only so far. If you want to have the law recognize a reporter's right to protect his sources, you need something like Stewart's idea that "the publishing business is, in short, the only organized private business that is given explicit constitutional protection."

Stewart is also the justice who said of obscenity that "I know it when I see it." And in the spirit of Stewart, state legislatures in 31 states (including Pennsylvania) have had no difficulty defining who is a journalist for the purposes of granting special protections in the law, such as the right Matt Cooper is asserting not to testify about confidential sources.

These state "shield laws" have inspired Sen. Richard Lugar of Indiana to introduce a similar federal version.

Pennsylvania's shield law reads as follows: "No person engaged in, connected with or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit."

Like all legal language, "general circulation" is open to interpretations, but one reasonable reading is that it excludes college newspapers, the publications of political parties and, yes, blogs, even though the Internet wasn't a twinkling in the myopic eyes of computer nerds when the shield law was adopted.

What we have here is the tension between principle (the First Amendment should be construed broadly) and pragmatism (Matt Cooper is a real reporter, a teenage blogger isn't). Shield laws reflect such pragmatism.

So does a law passed by Congress to blunt the effect of a 1978 Supreme Court decision upholding a surprise police search of the newsroom of Stanford University's student newspaper. That law, the Privacy Protection Act of 1980, requires that investigators ordinarily use a subpoena -- which can be contested in court -- rather than a search when they want to get their hands on files or photographs in the possession of journalists.

But, again, who is a journalist? That issue was raised at the time the 1980 law was being debated. Freelance reporters were adamant that they be included in the law's protections.

The result was a compromise. The Privacy Protection Act says that "it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."

Assuming that the law hasn't been undermined by the USA Patriot Act -- an interesting question -- it confers protections on freelance journalists whose work eventually will appear in print. But what about bloggers, a fraternity that includes not only partisans and cranks but eminent journalists like Lyle Denniston, the dean of Supreme Court reporters who contributes to SCOTUSblog.com.

Judge Sentelle's rhetorical question about the scope of journalistic privilege deserves an answer. One was provided by another member of the three-judge panel that decided Cooper and Miller had to testify.

Circuit Judge David S. Tatel acknowledged that "unconventional forms of journalism -- freelance writers and Internet 'bloggers,' for example -- may raise definitional conundrums down the road." But Tatel suggested that courts could settle the issue on a case-by-case basis with the "flexibility and capacity for growth and adaptation [that] is the peculiar boast and excellence of the common law."

The problem is that one man's flexibility is another man's caprice, and if I were a blogger and not a "real" journalist, I wouldn't find Judge Tatel's assurances very comforting.