If Congress does grant special First Amendment rights (i.e. protection from testifying) to professional journalists but not to amateur citizen-journalists, can the amateurs sue under the Equal Protection Clause? That seems to me the interesting question. If Congress said professional reporters had more votes than ordinary citizens, after all, it would be struck down instantly. What's different about speech?...

The trouble, of course, is that if you protect everybody then you have to offer less protection than if you only protect a select few. So a privilege that included bloggers and potential bloggers would either not protect much or would eat away a lot of the general obligation to testify (which might not be such a terrible thing).

So when Kaus talks about dividing up a pie of rights I immediately suspect that we are really talking about taking from some people and giving to others (the press). Even worse the "right" he is talking about is a difference in who gets sent to jail and who doesn't for doing the same thing (refusing to reveal a source).