Why the ‘bloggers aren’t journalists’ Oregon court ruling isn’t so bad

The journosphere is taking note of a U.S. District Court ruling in Oregon that “has drawn a line in the sand between ‘journalist’ and blogger,’” as Seattle Weekly’s Curtis Cartier put it in a post that (I think) broke the story.

“Now … we see why ‘who’s a journalist?’ is so wrong-headed,” tweets Jay Rosen in response to the news. Clay Shirky chimes in: “Bloggers have no right to speech unless they’re part of the ‘official media establishment’? Ethiopia,Belarus &…Oregon.”

I can’t tell from those tweets if they read the actual ruling, but I did — and it actually doesn’t seem that bad. Rather than representing a luddite judge’s ignorant dismissal of a new medium, the ruling seems to lay the groundwork for a fairly expansive legal definition of journalism.

In the ruling, Judge Marco A. Hernandez upholds a defamation claim against blogger Crystal Cox, rejecting Cox’s seven defense arguments. The initial journosphere reactions have focused on Hernandez’s rejection of two of those arguments: that Cox shouldn’t have to reveal the source of this column because she is protected by Oregon’s media shield law; and that Cox should be protected from damages claims because she is “media.” In both cases, Hernandez rejects the arguments on the grounds that Cox is not “media.”

Hernandez’s rejection of Cox’s shield law defense seems to rest on a literal reading of Oregon’s shield law, which applies to people affiliated with a “newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”

Hernandez says, correctly, that Cox is not affiliated with any of the above; therefore she is not “media” according to Oregon’s law. It seems reasonable that the judge applied the law as written rather than expanding the interpretation of the law to include online media. If Oregon had updated its shield law to cover the Internet, as Washington state has done, perhaps Hernandez would have ruled differently.

But it’s Hernandez’s rejection of Cox’s second media defense that, to my mind, actually gives hope for future expanded legal definitions of “media” and “journalist”:

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.

If Hernandez believed that you need to have a Columbia J-school degree or work at the New York Times to be considered a journalist, he would have stopped at No. 2. But he doesn’t stop there — instead, he offers five additional criteria that could define someone as a journalist. These criteria aren’t based on a credential or business card — or a particular medium — but on practices, values, and standards.

By doing this, the ruling smartly avoids saying “bloggers aren’t journalists.” It merely says “this blogger is not a journalist.” By listing criteria 3-7 and avoiding any mention of specific media, Hernandez is basically saying: “Bloggers may be journalists — but to be considered as such, they have to do something that could fit a standards/practices-based, medium-agnostic definition of journalism.”

It’s easy to quibble with Hernandez’s choice of canonized practices and standards (I can see some in the journosphere taking issue with No. 6 in particular) or say his criteria aren’t expansive enough. But to the extent that “journalist” and “media” need to be defined in the law, Hernandez’s approach seems like the right one. And his criteria seem as hopeful a starting point* as any.

—–

* Note: I’m not up to speed on other definition-of-journalist case law. I’m sure there have been other rulings that offer their own criteria for such definitions.

One response to “Why the ‘bloggers aren’t journalists’ Oregon court ruling isn’t so bad

  1. I had a look at Ms. Cox’s blog, not just the inflammatory article in question, but other parts of her blog, and I have to disagree with the judge. Her blog provides a news service, if that’s the kind of news you are looking for. Her also blog is published periodically, and further if you know anything about the pamphleteering that preceded the American Revolution, you would see that political bloggers are pursuing the same general activity as the pamphleteers of that era. If the judge is trying to argue that electrons aren’t paper and the current written law only specifies paper, then I would remind him that prosecutors are constantly (and quite often successfully) extending the applications of laws further than they were explicitly written in order to keep up with a rapidly changing world. Sorry, but Judge Hernandez got this one dead wrong.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s