Eugene Volokh has a post up that bears on the FEC controvery, the Apple Computer controversy and the proposed Free Flow of Information Act. An excerpt:

It turns out that many states have statutes (or state constitutional provisions) that do protect a journalist’s privilege. The California statute, which is at issue in the recent Apple trade secret litigation, provides very broad protection: It categorically prohibits courts from holding any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication” in contempt for refusing to name his sources, no matter how important the information may be. Likewise, federal campaign law, which generally bans certain commentary on candidates by corporations, has a “media exemption” that lets “any broadcasting station, newspaper, magazine, or other periodical publication” comment about candidates even if it is owned by a corporation.

I’m going to be writing an article in the next few months on optional speech protections, and especially how they apply to the new media. But the short point I want to mention here — both as to the California journalist privilege and the election law media exemption — is that many of the laws already cover blogs and other online media sources. Even a purely literal reading of the laws gives us that: The law isn’t limited to newspapers or magazines, but covers all “periodical publications.” (This would also be the proper reading of the proposed Free Flow of Information Act, discussed by Michelle Malkin.)

The law doesn’t apply to one-shot publications, such as books. (Maybe it should, but it doesn’t.) It doesn’t apply to sporadic publications, such as occasional newsletters or posts, with some unpredictable number of months elapsing between each. It doesn’t apply to communications to a few acquaintances, which probably don’t qualify as publications. But if someone posts items every day, or even several times a week, and reaches a significant number of members of the public, then he’s producing a periodical publication. That’s just the literal, and sensible, meaning of those provisions.

Hopefully the courts will agree.

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