If we are all journalists, should we all be protected?

By Dec. 7, 2011, 12:04pm PT 22 Comments

The bloggers vs. journalists debate may seem like something that’s of interest only to media-industry insiders, but it has very real implications for society when it comes to protecting freedom of information, as the case of blogger Crystal Cox has highlighted this week. We’ve written before about the “democracy of distribution” that new media tools like blogs and social networks have created, and how they allow anyone with a smartphone or Twitter account to become a journalist — whether they think of themselves as one or not. Cox’s case reinforces that some governments continue to lag behind in adapting to this transformation.

Cox, who describes herself as an “investigative blogger,” is a financial-industry whistleblower who writes about allegations of wrongdoing and malfeasance by banking and finance players. In January, one of the targets of her blog posts — an investment firm called Obsidian Finance Group and its founder Kevin Padrick — sued her, alleging she defamed them. Cox argued she and the source she relied on for her posts should be covered by laws designed to protect journalists, but an Oregon judge ruled she was not entitled to this protection because she was not affiliated with a traditional media entity. His ruling said in part that:

…although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.

Who is entitled to coverage by a shield law?

There are so-called journalist “shield laws” in about 40 different states, but some have been updated to include cover newer forms of media such as blogs, and others haven’t. For example, a lawyer in Washington state who is an expert in free speech and media law — and who helped draft the state’s shield law in 2006 — said Cox would have been covered by Washington’s law, which refers to any “entity that is in the regular business of news gathering and disseminating news or information to the public by any means.”

The Washington lawyer, Bruce Johnson, said the state’s law (which was passed in 2007) was rewritten in the wake of a federal case involving a blogger who was sued by Apple for revealing secrets. In that case, the Court of Appeals for the 6th Circuit ruled that Jason O’Grady — who ran an Apple blog called Power Page — was entitled to protection as a journalist, and that he didn’t have to reveal the names or identities of the sources he used for his reporting. In their decision, the appeals court judges said blogs were covered by California’s shield law, even though they weren’t specifically included:

Petitioners … like any newspaper or magazine, … operated enterprises whose raison d’etre was the dissemination of a particular kind of information to an interested readership… In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company.

Who decides what is “real” journalism?

Apple’s legal counsel tried to argue that the blogs it was going after (which included other sites such as Apple Insider as well as Power Page) weren’t real journalistic entities, but were simply involved in gossip and other non-journalistic pursuits. But the appeals court specifically rejected this line of argument, and in effect said journalism was a broad enough concept to cover a wide range of different versions:

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The Shield Law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news.

The O’Grady ruling isn’t the only decision to broaden the concept of what journalism is. In a decision by the Court of Appeals for the 1st Circuit earlier this year involving a case, a judge ruled that a man who recorded a video of police beating a man in Boston was entitled to the same protection as the mainstream press. Judge Kermit Lipez said this protection arguably extended to any “citizen journalist” and not just to members of the traditional media, saying the availability of devices like smartphones “means that… news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper” and that such changes “make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

Cox likely wouldn’t have been able to avoid the defamation decision — and its $2.5-million judgment — even if she had been covered by Oregon’s shield law. Traditional journalists are still open to prosecution for defamation, and the only way for Cox to defend herself would have been to prove her allegations were true (which would have meant revealing her source). But the court’s decision that freedom of the press protections only apply to journalists with traditional or mainstream entities seems out of step with rulings like the O’Grady case or the Lipez ruling, which suggests journalism — and the idea of who is a journalist — is a much broader concept than it has been in the past.

That has implications for more than just bloggers; it also affects how we see recent events like the “Occupy Wall Street” protests in New York City, Los Angeles and elsewhere, where the authorities tried to draw distinctions between traditional journalists and those without mainstream affiliations, so that they could control the message around those events. In some jurisdictions such as Quebec and Brazil, governments are considering laws that would license journalists, presumably for the same purpose. But those attempts seem more and more like King Canute-style attempts to hold back a rising tide.

Post and thumbnail photos courtesy of Flickr users Petteri Sulonen, Rosaura Ochoa and Yan Arief Purwanto

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