Excerpt From The New York Times – The Opinion Pages Are All Bloggers Journalists?

Excerpt From The New York Times – The Opinion Pages
Are All Bloggers Journalists?

Introduction –
A federal judge in Oregon ruled that Crystal Cox, a blogger who was sued for defamation after she accused the founder of an investment group of acting illegally and unethically, cannot claim protections afforded to journalists under state shield laws. In his ruling, the judge noted that Ms. Cox was not affiliated with a “newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”
What are the implications of this ruling for bloggers and journalists? How should judges decide who is protected and who isn’t?

The Problem With Pre-Internet Laws
Kelli L. Sager is a partner in the Los Angeles office of Davis Wright Tremaine LLP. She represents newspapers, magazines, broadcasters, authors, Internet companies and other publishers.

The unstated questions that have fueled much of the discussion about bloggers are two-fold: whether bloggers have the same constitutional rights as other authors or publishers, and whether bloggers should be afforded certain statutory protections that apply to mainstream media, such as retraction statutes and reporters’ shield laws.
It's hard to imagine excluding bloggers from the protections that shield laws provide.
The first question is easy to answer: the rights of free speech and press under the First Amendment does not and cannot depend on the medium through which information is exchanged. Whether the expression is conveyed by a lonely pamphleteer or the world’s most sophisticated communications company, First Amendment protections apply. The notion that bloggers have some lower standard of protection is wholly inconsistent with what the United States Supreme Court has recognized as a necessary marketplace of ideas, where one’s ability to communicate freely is not dependent on access to a printing press or broadcast equipment.
The second question is more complex, because it depends in part on the language in a particular statute, and the purpose for which it was enacted. Retraction statutes, for example, typically are intended to provide needed “breathing space” for the exercise of free speech, recognizing that sometimes mistakes will be made. Such statutes also provide an incentive for the timely correction of inaccuracies -- a purpose that benefits the subject of the story as well as the publisher. So why wouldn’t retraction laws apply to bloggers, who can – and often do -- correct a misstatement almost instantaneously? Courts have had little difficulty finding that retraction statutes apply to Web sites; the same rationale includes bloggers.
A similar analysis applies to shield laws, which protect journalists from being compelled to reveal confidential sources and other information. Because most laws were written before the Internet existed, they often refer to then-existing media -- newspapers, magazines and the like -- or simply to “journalists,” without defining who is a journalist.
More than five years ago, a California appeals court rejected the argument that the state’s shield law does not cover web publishers. The court wisely declined the invitation to evaluate whether web publishers are “legitimate journalists,” recognizing that doing so is a dangerous step for any branch of the government to undertake. Instead, the court focused on whether the website in question was actively engaged in the gathering and dissemination of information to the public.

Given the many important stories originating from bloggers, it is hard to imagine a rationale for the wholesale exclusion of those writers from the protections that shield laws provide, whether they are called “journalists” or not.

Rethink Shield Laws
Stuart Benjamin is the Douglas B. Maggs Professor of Law at Duke University Law School and the co-author of "Telecommunications Law and Policy."

The really interesting question is whether blogging should change the legal regime applicable to journalism. This question arises most directly with respect to journalist shield laws and a possible reporter’s privilege. Thirty-nine states and the District of Columbia have adopted statutes giving journalists some protection against subpoenas, and in each case the question arises of exactly who is covered.
The costs and benefits of the protections for false statements seem to have increased in the blogging era.
But I want to raise the less obvious question of the impact of blogging on the desirability of the existing protections against libel and defamation.
Beginning with New York Times v. Sullivan in 1964, the Supreme Court crafted First Amendment protections for false statements of fact on matters of public concern -- requiring “actual malice” if the statement is about a public figure and negligence for a private figure. The Supreme Court opinions laying out these standards do not limit these protections to journalists, or to media more generally.
The opinion a few days ago in Obsidian Finance Group v. Cox mistakenly treats references in some cases to the media as a limitation of the protection to media defendants. But the mistake was in some ways understandable.
In the 1960s and 70s, when the Supreme Court laid out free speech limits on libel and defamation, the obvious potential sources of false statements that could seriously harm one’s reputation (and thus be worth suing for libel or defamation) were large organizations like newspapers, magazines and broadcasters. Do the freedoms extolled in the Supreme Court opinions have the same resonance when everyone and his brother can publish false information to the world at the push of a button? I’m not sure. Both the costs and benefits of the protections for false statements seem to have increased in the blogging era, and it is not obvious to me which have increased more.
And note that the United States is an outlier in the level of constitutional protections it provides to libel and defamation defendants. In the almost 50 years since New York Times v. Sullivan, many other countries have considered a similar regime, and not one has adopted it.

According to the Law
Kyu Ho Youm, the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication, is the author of “International and Comparative Law on the Journalist’s Privilege: The Randal Case as a Lesson for the American Press.” He is on Twitter as @MarshallYoum.

Judge Hernandez ruled correctly that Crystal Cox, the self-proclaimed “investigative blogger,” was not a journalist, so she was not privileged to protect her source. But his textual interpretation of the Oregon shield law shows that the pre-Internet law needs updating. As the 1st U.S. Circuit Court of Appeals stated recently, in an era of changing technology and society, “the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”
Judges will continue with their traditional journalist-oriented approach unless their state laws become more ambiguous.
The federal court ruling reinforces the judicial reluctance to read bloggers and other journalistic outsiders (“outliers”?) into state shield law. Judges are more likely to continue with their traditional journalist-oriented approach to source protection unless their state laws are ambiguous enough to allow them creative interpretations.
Yet I wish that the still evolving rights for bloggers had been more searchingly examined by Judge Hernandez, instead of focusing on “media person” and “medium of communication” under the Oregon law. Not every blogger can be a journalist entitled to the source protection. And some bloggers deserve protection if their work is similar to that of mainstream media professionals.
In deciding whether a blogger can claim the journalistic privilege, as journalism scholar Jason Shepard of California State University-Fullerton suggested, judges should scrutinize:
1.) whether the blogger’s stated purpose centered on news-gathering and dissemination;
2.) whether news-gathering and editorial decision-making processes were regularly employed; and
3.) whether the end product of the blogger’s work was sufficiently important within the context of public interest.
Otherwise, the privilege would be too broad to serve worthy bloggers in a meaningful way.
Significantly, one of the congressional shield law proposals in the mid-2000s featured some, if not all, of the functional journalistic criteria for privileging non-traditional journalists like bloggers.

A Broader Definition of ‘Journalist’
Ellyn Angelotti teaches about social media, digital trends and media law at the Poynter Institute, a school for journalism and democracy in St. Petersburg, Fla.

Everyone knows that you no longer need to buy ink by the barrel to be considered a publisher. Your grandmother can do it with a laptop.But can anyone be considered a journalist? That is the focus of the Cox ruling. It suggests that a journalist may need to act on a set of professional standards to be recognized as a protected member of the tribe.
Instead of focusing on who is doing the publishing, it is more important than ever to look at how they are doing it.
So who is a journalist? A journalist -- good or bad -- possesses a hunger to pursue the truth and to share it in compelling ways. Yet some of the best journalists have had no academic training in the field.
Blogs compete with mainstream media every day. In some cases, they have become more trustworthy as sources of information than some old school practitioners. Oregon’s shield law does not recognize the blog as a “medium of communication” worthy of special protection. Such a narrow definition of journalism is archaic.
Instead of focusing on who is doing the publishing, it is more important than ever to look at how they are doing it. It's true that the public’s confidence in online news is shaky at best. The once idealized information superhighway has become a parking lot of error, misinformation, rumor and junk. But it shouldn't matter whether the person calls himself a journalist or not, nor where he publishes a story. The quality of the story and the integrity of the method of reporting should count. By that standard, some bloggers would qualify as journalists while some deadwood reporters at newspapers would fail.
The First Amendment is not just for journalists. It affords all Americans the right to unfettered speech. We should celebrate how technology lets us express more speech than ever before -- without discriminating against the “non-journalists.” That doesn't mean that online publishers should not be judged according to an evolving set of standards and practices.