Say that an IRS agent leaks a politician's income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens' privacy and ensure a fair and efficient tax system.
To punish the agent, prosecutors may need to get the leaker's name from the reporter; but if the reporter refuses to testify because of a "journalist's privilege" to protect confidential sources, the agent may never be caught.
Read the full piece here. Volokh speaks of how the “journalist’s privilege” is under threat these days, and argues in its defense. He also argues, rather more controversially, that it be extended to bloggers as well. “The First Amendment can't give special rights to the established news media and not to upstart outlets like ours,” he argues. “Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.”
But if everybody blogs, then the journalist’s privilige would be extended to everybody, in which case it would hardly be a privilege. The sticky problem here is that while blogging is an exciting new journalistic medium, it is also the only journalistic medium that has no entry barrier – most of us can’t start a newspaper or a news channel, but it takes five minutes on Blogspot to start to blog. And it is hardly possible to draw a line between a journalistic blogger and a non-journalistic one.
Volokh goes on to propose a modification of the journalist’s privilege, which, if it is extended to bloggers, amounts to an amendment of the First Amendment. You haven’t heard the last of this issue.