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Behind-the-times judge rules bloggers aren't journalists

Posted by Mark Leccese  December 14, 2011 08:49 AM

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Although the “are bloggers journalists?” argument was declared over seven years ago in a lengthy essay by academic and media writer Jay Rosen (the answer: well … sometimes), it isn’t over — and it’s going to be a long time before it is.

A couple of weeks ago, an Oregon judge took a side in the argument: Bloggers aren't journalists.
Seattle Weekly reported on the decision, a case in which blogger Crystal Cox was “sued by investment firm Obsidian Finance Group in January for defamation, to the tune of $10 million, for writing several blog posts that were highly critical of the firm and its co-founder Kevin Padrick.” The court ruled she was not protected by the Oregon shield law, which shields reporters and editors from having to reveal confidential sources in court.

Boy, did she ever defame this Padrick fellow. Any respectable journalist (and many disrespectable ones) would deny Crystal Cox three times, and then three times again, just to make sure.

The court ruled on a blog post written by Cox that contained the following paragraphs.

There are Many Reasons Why I Claim that Kevin Padrick, Obsidian Finance LLC is a Thug, Thief and a Liar.

That was the first sentence.

Who Was Kevin Padrick of Obsidian Finance Group really working for when he illegally, unethically, corruptly got this financial information and used it to make himself TONS of money?

You get the idea.

When Judge Marco A. Hernandez of the U.S. District Court in Portland, Oregon issued his decision stating bloggers aren’t journalists on Nov. 30, bloggers and journalists raced to their keyboards and WordPress accounts to set Judge Hernandez straight.

Then they got a look at Cox’s blog posts and started backing away. David Carr, the media columnist for the New York Times, led the retreat earlier this week.

I went to work on a blog post, filled with filial umbrage, saddened that the Man once again had used a boot heel to crush truth and free speech. But after doing a little reporting, I began to think that what scanned as an example of a rich businessman using the power of the courts to silence his critic was actually something else: a case of a blogger using the Web in unaccountable ways to decimate the reputation of someone who didn’t seem to have it coming.

The ruling on whether she was a journalist in the eyes of the law turned out to be a MacGuffin, a detail that was very much beside the point. She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality. Journalists who initially came to her defense started to back away when they realized they weren’t really in the same business.

As much as I love Carr’s use of the film slang “MacGuffin” — an element in a movie plot that sets things in motion but isn’t anywhere near as important as it first seems — I loudly disagree. The part of Judge Hernandez’s ruling that declares a blogger is not a journalist could turn out to be very important indeed.

In his 13-page decision, Judge Hernandez finds no precedent ruling that bloggers are journalists, and decides to set the precedent himself.

Defendant cites no cases indicating that a self-proclaimed "investigative blogger" is considered "media" for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is "media," triggering the negligence standard.

Then comes Judge Hernandez’s definition of a journalist, which, in Oregon, is now law. Who knows which judges in other federal courts or in state courts may begin to cite it as precedent?

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

That means, to be a journalist, you’ve got to:

  • Have studied journalism in school (college, I assume, which can get expensive).

  • Work for a media outlet other than an independent blog (that rules out thousands of bloggers doing good journalism).

  • Maintain established journalism standards (whose standards? Standards in journalism tend to be, um, fluid).

  • Get both sides of the story (Hey, FoxNews and MSNBC and the Boston Herald and the Boston Phoenix and a whole bunch of other news organizations: From now on, you are no longer journalists).

This is silliness, Your Honor. Jay Rosen may have said in January of 2005 that the semantic dustup over whether bloggers are journalists was over, but the past seven years have proven him very wrong. Thousands of bloggers have arisen to do serious (if sometimes uneven) reporting on national, state and local issues. The judge is stuck in 1998.

John C. Dvorak of PC Magazine nearly pops a blood vessel in writing about Judge Hernandez’s decision.

As far as I'm concerned, bloggers can easily be considered journalists if they claim to be taking part in journalistic endeavors. That means reporting. They can merely report the current weather conditions, as far as anyone should be concerned. Publish the report, "the weather in Berkeley is nice today," and you are a journalist. You do not need training to do this. You do not need a license or a degree. There are no hoops that you need to jump through. No one will fine you for practicing journalism without a license. This is guaranteed by the Bill of Rights, not by the Columbia School of Journalism.

Eric Robinson of the Citizen Media Law Project, in a blog post earlier this week, pointed out that precedent does exist for considering bloggers journalists.

Judge Hernandez is technically correct: I was unable to find a case holding, in the context of applying a negligence standard because the defendant is a media entity, that bloggers are journalists and that blogs are media. But there ARE cases holding that bloggers are journalists and that blogs are media. Two prominent examples are O'Grady v. Superior Court, 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72 (Cal. App., 6th Dist., 2006) (involving California's shield law) and Mortgage Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010) (New Hampshire's constitutional journalist's privilege).

These cases may not have been brought to Judge Hernandez’s attention, Robinson speculates, because Cox — without journalism or legal training — was serving as her own attorney.

Still, Robinson notes there is not much in the way of precedent for considering bloggers journalists.

Even though the Internet has been around for almost two decades now, it is still too new, and appellate decisions involving the web are still too few (though growing), for that issue to have already been litigated.

That is precisely what worries me. In the absence of precedent, Judge Hernandez’s decision may become one, and that would severely limit journalism as it is evolving in the new world of the Internet — even by people who never darkened the doorway of a journalism class.

Follow @mleccese on Twitter.

This blog is not written or edited by or the Boston Globe.
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About the author

Mark Leccese, a journalism professor at Emerson College, covered Massachusetts politics, business and the arts for more than 25 years as a newspaper reporter, editor and magazine writer. He has More »

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