‘Are All Bloggers Journalists?’

As a blogger — not a journalist — a “debate” in the New York Times caught my interest.

The lead article asks the question, “Are All Bloggers Journalists?

The question and the ensuing debate are prompted by an Oregon federal judge’s ruling 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.”

The Times article adds that, 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,’” and then asks, “What are the implications of this ruling for bloggers and journalists? How should judges decide who is protected and who isn’t?”

Four journalism- and/or law-associated personalities debate the issue.

I will quote what I feel are the most important/relevant comments and let the readers wade in.

Ellyn Angelotti focuses on “who is a journalist,” and says that “Instead of focusing on who is doing the publishing, it is more important than ever to look at how they are doing it.”

… 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.

She concludes:

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.

Referring to the Oregon case, Kyu Ho Youm claims that the Oregon Judge ruled correctly on Crystal Cox, because “the self-proclaimed ‘investigative blogger,’ was not a journalist, … she was not privileged to protect her source.”

But, he adds, the Judge’s “textual interpretation of the Oregon shield law shows that the pre-Internet law needs updating ,” and that “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.”

Youm suggests that, in deciding whether a blogger can claim the journalistic privilege, 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.

Stuart Benjamin focuses on issues of libel and defamation and on the impact of blogging on the desirability of the existing protections against libel and defamation and asks:

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?

Benjamin is 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.”

Finally, Kelli L. Sager says:

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.

As to the first question, Sager says, “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 second question, Sager says, is more complex, because:

[I]t 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.

Referring to shield laws, she concludes:

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.

  

Author: DORIAN DE WIND, Military Affairs Columnist

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