Friday, May 22, 2009

Are Bloggers the Same as Journalists in Court?

I tend to be cynical when bloggers claim to be journalists. Many of those who claim to be "citizen journalists" are not, in fact, doing the sort of thoughtful, detailed, original research that is the backbone of true journalism. Where I, as a blogger, may feel justified in posting a story based upon a rumor or an anonymous source with questionable reliability, a true journalist would insist on finding reliable, dependable sources for the information s/he prints. I've witnessed the difference between good journalism and good blogging.

My theoretical distinction is being destroyed, however, by a race to the middle. "Journalists" publish unsourced speculation, while some bloggers do actual, in-depth, factual investigation. What I consider to be journalism can appear in blogs, and what I consider to be blogging appears regularly in print. Midtown Miscreant's examination of blight had more journalistic integrity than the emotional drivel published by some people cashing McClatchy checks.

A court in New Jersey is now facing the challenge of deciding whether a blogger is entitled to protect her sources under a Journalist Shield Law. She published some criticism about a software company, and the company has sued her for libel. In the discovery phase of the case, the company has sought to find out who her sources were. She's refusing, claiming that she should be entitled to protection under the New Jersey shield law.

This is all interesting stuff. Do bloggers have the legal right to withhold identifying information about their anonymous tipsters? Should journalists be entitled to greater rights than bloggers when they are publishing material that does not meet the traditional standards of journalistic integrity?

More globally, in a world where good journalism is showing up on blogs and crappy bias is being published in newspapers, how do we decide what qualifies as real journalism? And if the courts find that to be a tough issue, how will the average citizen handle it? Does the medium matter more than the substance?

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Anonymous Nick said...

The general issue won't be settled in the New Jersey courtroom, no matter the outcome of this particular case. Eventually the quandary will land in the lap of SCOTUS. As you noted the problem is that the venue is too much of a moving target any more for one side or the other to claim a moral exclusivity - there are good and bad practitioners on both sides.

My kneejerk reaction to this particular case is that the court will rule for the company. If the offended party had been a public figure or governmental in nature, the blogger might have prevailed. However the courts tend to treat legal constructs differently in these cases than they do individuals/governments.

We’re all ‘bout bidnez n stuff, doanchano?

5/22/2009 7:24 AM  
Anonymous Anonymous said...

and to add to all that, a lot depends on how each state's statute is worded. Some define journalist broadly enough to include bloggers. Some specifically do not. Missouri's failed effort two years ago to create a shield law would not have included bloggers because legislators specifically told the bill sponsor that they would not pass a law that made bloggers equal to working journalists.

So the reality is it will depend on the statute of each state.

(from your friend who is in the know....)

5/22/2009 7:37 AM  
Blogger m.v. said...

is there a court definition of a journalist? Even journalists are sometimes forced to give up sources or face jail time.I agree with comment #1 - they will rule for the company.

5/22/2009 8:03 AM  
Anonymous Anonymous said...

Is the allegation presented by the blogger true? If so, and it can be proven, the blogger may prevail.

If the mainstream media won't run the story, the blogger assumes the role of the press...and rightfully deserves any protections afforded the press.

In an era when the mainstream media is more interested in promoting agendas than reporting the news; wouldn't it be restricting the "freedom of the press" to not afford bloggers the same protections? The reasoning behind the protections was to ensure that the press could “sound the alarm”. Today, the press only sounds the alarm if; 1. It will gain readership/viewers/listeners. 2. It will not do damage to those they wish to protect. (The days of unbiased reporting by the mainstream are gone.)

Maybe the litmus test should be determined by reviewing the post. If it was an unbiased representation of the facts; it should be protected.

When I was younger, news was news (at least I thought it was). It didn't matter who, or what party, or what industry, or what helped or hurt. If it was something that would interest was news.

5/22/2009 8:34 AM  
Blogger Jason said...

Truth is really this woman's only defense. I have confidential sources for my blogging covering Springfield that I will use but mostly it's as basis for a question to the public official or business. I operate under the belief I'm not protected by Shield Law but I won't give up sources except by court order.

5/22/2009 8:46 AM  
Blogger les said...

a true journalist would insist on finding reliable, dependable sources for the information s/he prints.What a quaint notion. On the national level, we're generally lucky if "journalists" act as honest stenographers, mindlessly relaying what their precious sources say; concern about pesky facts really isn't much in the picture. Prior to the economic meltdown in the news biz, McClatchy was probably the most reliable. AP, NYT, WaPo--mostly hacks. NPR seems mostly in the catapulting the propaganda bag than ever before. I have far more faith in Steve Benen at the Washington Monthly blog and Matt Yglesias at ThinkProgress to be fact based than most any of the MSM.

5/22/2009 9:38 AM  
Blogger Emma said...

If justice only works for a certain “class of citizen” then it cannot serve the interests of all.

If we accept the premise that no one is above the law, we cannot permit a prevailing law to exclude Constitutional privileges, which are granted to all.

5/22/2009 10:11 AM  
Anonymous Anonymous said...

Emma got it right.

As Judge David Sentelle opined in 2005;

"If the courts extend the privilege only to a defined group of reporters, are we in danger of creating a 'licensed' or 'established' press? If we do so, have we run afoul of the breadth of the freedom of the press, that 'fundamental personal right' for which the court in Branzburg expressed its concern?

"Conversely, if we extend that privilege to the easily created blog, or the ill-defined pamphleteer, have we defeated legitimate investigative ends of grand juries in cases like the leak of intelligence involved in the present investigation?"

5/22/2009 4:47 PM  

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