Rational basis question

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Nov 30 15:27:38 PST 2005

	Various journalist's privilege statutes provide protection for
people who write for "newspapers, magazines, and other periodicals."
Periodical is generally defined as something that publishes at a fixed
or regular interval.  Print publications have long published at fixed
intervals because it was uneconomic to publish material as it was
written.  But online, old media -- CNN.com, NYTimes.com, etc. -- as well
as new large media (Slate.com) and new individual media (blogs) post
things as they arise, usually several times a day but at no fixed

	Let's assume that a court interprets, as a matter of statutory
construction, "newspaper" and "magazine" to mean strictly print
publications, and "periodical" to mean a publication that's published at
a fixed or regular interval.  Would the resulting distinction between
(1) a newspaper or a Web site that deliberately posts new material only
once a day (as, for instance, OpinionJournal.com's Best of the Web
does), and (2) the newspaper's Web site / slate.com / InstaPundit.com,
which add new material whenever old material is posted pass the rational
basis test?  Or could one argue that it's irrational for a publication
to be treated as less entitled to a journalist's privilege simply
because it publishes not daily or weekly but several times a day?


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