Just came back from the gym, where I saw an "Inside the Blogs" segment on "Inside Politics" discussing reactions to today's opinion from the D.C. Circuit. Somewhat surprisingly, in 10 minutes or so of discussion, they made no reference to this passage from Judge Sentelle's concurrence, noted earlier today by Orin Kerr:

Are we then to create a privilege
that protects only those reporters employed by Time Magazine,
the New York Times, and other media giants, or do we extend
that protection as well to the owner of a desktop printer
producing a weekly newsletter to inform his neighbors, lodge
brothers, co-religionists, or co-conspirators? Perhaps more to
the point today, does the privilege also protect the proprietor of
a web log: the stereotypical "blogger" sitting in his pajamas at
his personal computer posting on the World Wide Web his best
product to inform whoever happens to browse his way? If not,
why not? How could one draw a distinction consistent with the
court's vision of a broadly granted personal right? If so, then
would it not be possible for a government official wishing to
engage in the sort of unlawful leaking under investigation in the
present controversy to call a trusted friend or a political ally,
advise him to set up a web log (which I understand takes about
three minutes) and then leak to him under a promise of
confidentiality the information which the law forbids the official
to disclose?

...

If the courts extend the privilege only to a
defined group of reporters, are we in danger of creating a
"licensed" or "established" press? If we do so, have we run
afoul of the breadth of the freedom of the press, that
"fundamental personal right" for which the Court in Branzburg
expressed its concern? 408 U.S. at 704. Conversely, if we
extend that privilege to the easily created blog, or the ill-defined
pamphleteer, have we defeated legitimate investigative ends of
grand juries in cases like the leak of intelligence involved in the
present investigation?

Huh. It makes you think that someone in Judge Sentelle's chambers is familiar with blogs and has thought about the question... which is something that, despite the experiences of Eason Jordan and Dan Rather, and the fact that her show has been featuring a segment on blogs, is a lot more than can be said for Judy Woodruff. Somewhere in the middle of the segment, during a discussion of the Michael Bates/Tulsa World situation, she asked (seemingly incredulously, but I was reading the closed-captions and not listening, so I could only gauge by her expression) something like: you mean these bloggers aren't just responding to what's on talk radio and the 24-hour TV news networks, but they're reading newspapers, too?

Gee, you think she knows that bloggers have even started doing original reporting?

Returning to the Judith Miller case, Judge Sentelle wisely concludes:

if such a decision requires the resolution of so many
difficult policy questions, many of them beyond the normal
compass of a single case or controversy such as those with
which the courts regularly deal, doesn't that decision smack of
legislation more than adjudication? Here, I think the experience
of the states is most instructive. The creation of a reporter's
privilege, if it is to be done at all, looks more like a legislative
than an adjudicative decision.

It's good to have judges committed to judicial restraint and the separation of powers, although "smack of" is one of the most colloquial-sounding phrases with a solid literary pedigree around. (see, e.g., Shakespeare, The Life and Death of King John, Act I, Scene I).