NYT has an article addressing the cases Apple has brought against three online sites. These cases center around theft of trade secrets, but the question before the court is whether bloggers should be treated as journalists under a California statute that allows reporters to keep their sources confidential.

In the article, Professor Balkin suggests a functional test: a blogger should be treated as a journalist when the blogger acts like a journalist. He discusses this further on his site (via Copyfight):

[A] court should ask whether the blogger regularly gathers news, interviews sources, and produces content in roughly the same way that print and television reporters do. That would mean that a very large number of bloggers-- probably most-- would not enjoy the reporter's privilege. To enjoy the privilege the blogger would have to make some showing that they were functionally similar to reporters.

I think part of the problem is that the term “blog” is overused, perhaps in an attempt to leverage the hip factor. It has come to describe any site that publishes content online in reverse chronological order. Unfortunately, it also conjures up the images of, to use Prof. Balkin's words, “a guy sitting in his pajamas drinking beer”. Underlying this image is an idea of informality - and it's certainly not an image we traditionally would associate with 'journalism'.

However, many sites, including those named in the suit, publish what is closer to an online magazine or newspaper in both content and format. Indeed, some sites rightly describe themselves as such. See Gadling, for example, which claims to be “a blog — an online magazine — about 'engaged' travel”. And there are countless 'bloggers' who write articles that would look right at home in print.

Then there are other sites, like my own, that are certainly more of a personal outlet.

This is why Prof. Balkin's distinction is important: the test should focus on the content, not the medium. He discusses further:

The functional test has two goals. The first goal is to separate the mode of distribution from the nature of the task. Not all bloggers do the same sorts of things, even if they all use the same distribution software; conversely, some bloggers are very much like traditional journalists even though they use a different method of distribution.

As a more concrete example, let's imagine that the NYT article I linked to was cut from the print edition and only published online (in fact, that may already be the case, since I don't read the print edition). Let's go a step further: imagine that the NYT decided to move the whole Technology section to an online-only format. Does that mean that Jonathan Glater et al should no longer be considered journalists?

Eugene Volokh of the wonderful Volokh Conspiracy is also quoted in the article, and is apparently “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.”

Of course, treatment as a journalist is a double-edged sword. See The Coming Crackdown on Blogging, where the FEC wants to regulate bloggers. However, the decision, if it stands, certainly supports the blogger-as-journalist premise.

See also: Copyfighter Alex Wexelblat asks, Are Bloggers Journalists? (including a link to an excellent CS Monitor article).