Michelle Malkin reports on the disturbing news that bloggers and on-line news sources aren’t protected under the American Constitution unless they are affilliated to big media:

Jonathan Glater of the New York Times has a good article about Apple Computer’s effort to force three bloggers to reveal confidential sources.

The article quotes Eugene Volokh, who tells the Times he is “considering filing a friend-of-the-court brief in the case on the side of the bloggers, saying that the privilege should extend to them.” I hope other law bloggers will do the same.

The Times also quotes Jack Balkin, a professor at Yale Law School. Balkin proposes that journalistic privileges be extended to some bloggers but not others, based on whether the blogger regularly cultivates sources, gathers information and then organizes and presents it to the public the same way that print and television reporters do. He elaborates on his blog here.

The prospect of the government making such distinctions is unsettling. But Balkin deserves credit for coming up with a proposal that acknowledges the reality that some bloggers are engaged in journalism while others aren’t.

This bill, by contrast, explicitly excludes all blogs, online news sites, and webzines from journalistic protections, unless they are affiliated with a traditional media outlet (e.g., newspaper, magazine, radio or TV station). Thus, blogs run by James Taranto, Kevin Drum, and Eric Alterman would qualify for journalistic protections (these blogs are affiliated with traditional media outlets), but The Drudge Report, Instapundit, and CNet would not. Slate would be protected (it is owned by the Washington Post Company), but Salon would not.

Absurd.

Axinar is even more gloomy:

Between this and the FEC extending McCain-Feingold to blogs, I get the distinct feeling that the days of the blog may be numbered and the demise of the First Amendment itself may not be far behind.

The Framers had a neat idea, I suppose, that God himself gave us the right to tell the government, the Monied Elite, or anyone else precisely what we think of them. How sad it is that there are people so terrified of open discussion that they would wish to gag us all. How sad indeed it is to live in an epoch with such people.

and Thinksecret itself isn’t going down easily:

The dePlume Organization LLC, owner of Mac news Web site Think Secret, today filed a special motion to have Apple’s lawsuit against the site dismissed on First Amendment grounds.

Court filings from Think Secret’s response to the suit are available here for download in PDF format.

“Apple’s lawsuit is a affront to the First Amendment, and an attempt to use Apple’s economic power to intimidate small journalists,” Think Secret says in the court filings. “If a publication such as the New York Times had published such information, it would be called good journalism; Apple never would have considered a lawsuit.”

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