I was intrigued when I read Steve Rubel’s post on a New York Times op-ed piece by UCLA law professor Eugene Volokh. The op-ed, according to Rubel, advocates press protections for bloggers.

So I clicked on over and read the piece and came away wondering how Steve arrived at that conclusion. Fortunately, I wasn’t the only one to think that Volokh made a case against treating bloggers as journalists in court. In his blog, Allan Jenkins notes, “Volokh’s real point is anything but happy news for bloggers.”

Indeed. Journalism is a profession; blogging is an avocation. Some journalists may violate a code of ethics, but at least they have one. Bloggers have none. As Volokh notes, someone with an axe to grind can ask a friend to post leaked information to his blog, and the friend can claim first-amendment protection.  “If the privilege is upheld, the friend and the agent will be safe—but our privacy will be lost.”

Volokh’s suggestion actually falls well short of the protections journalists enjoy.

The best solution may be to borrow a principle from other privileges, like those for confidential communications to lawyers, psychotherapists and spouses. The law has generally recognized that protecting the confidentiality of such communications is more important than forcing a person’s testimony. But it has also limited the privilege. Communications that facilitate crime or fraud, for example, are not protected. I may confess my crimes to a lawyer, but if I try to hire him to help me commit my crime, he may be obligated to testify against me.