It would be nice if the debate over whether bloggers are journalists could be put to rest, more than a decade after it first began, and especially after bloggers like Glenn Greenwald have not only broken news stories but won Pulitzer Prizes for doing so. But it continues — especially when it comes to the protections that bloggers are entitled to and whether they should be the same as those given to professional journalists, as I have argued they should be.
A recent legal decision that helps support this idea was handed down in a Florida court case involving accusations of defamation. Under state law, anyone who wants to pursue a defamation case has to notify the media outlet in question five days before filing. But Christopher Comins argued he didn’t have to do so in the case of a blog post from university student Matthew VanVoorhis, because blogs aren’t a traditional form of media and therefore aren’t entitled to notice.
As Techdirt notes, Comins’s argument was thrown out by the original court, but he appealed. Now, an appeals court has upheld that decision — and in the course of doing so, the judges in question chose to provide some great commentary on the importance of blogging as a form of media. The decision says:
“The advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative… the impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa.”
Journalism is what you do, not what you are
The court went on to say that the term blog typically refers to a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise — and one which usually provides for public impact or feedback. Based on this, the decision states, “it appears clear that many blogs and bloggers will fall within the broad reach of media, and, if accused of defamatory statements, will qualify as a media defendant.” It continues:
“There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments.”
The court stopped short of saying that any blog or blogger would qualify for protection as a media outlet, but said that VanVoorhis’s blog definitely falls “within the ambit of the statute’s protection as an alternative medium of news and public comment.” As the trial lawyer representing VanVoorhis described it in a blog post about the judgement: “The essential point, which the appellate court agreed with, is that a journalist is not something you are, but is rather something that you do.”
This is the point that I and others have tried to make about attempts to protect journalists through “shield laws.” Such laws often try — of necessity — to define who qualifies as a journalist, and often resort to doing so based on whether they are paid, whether they work for specific media outlets, and so on.
Everyone is protected, not just journalists
Restricting protection to professional journalists is exactly what some judges and courts have also tried to do in certain cases, like the one involving Montana blogger Crystal Cox. The trial judge said she was not entitled to broader protection because she was not a journalist — but an appeals court ruled that this was incorrect, and it cited the Ninth Circuit’s commentary on whether the institutional press should have any more protection than the average citizen.
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.”
Somewhat ironically — given these kinds of defenses of the contributions that blogging can make to journalism — one of the most prominent and authoritative blogs writing about the decisions of the U.S. Supreme Court, the SCOTUSblog, has been repeatedly denied a press pass to cover the court officially, because it is not considered to be a member of the media.
Post and photo thumbnails courtesy of Thinkstock / triloks