Appeals Court Upholds Ruling That Blog Commenter Was Not A Journalist
from the too-bad dept
While lots of attention was paid to the claims that the confiscation of Gizmodo reporter Jason Chen's computer's would "settle" whether bloggers are considered journalists, the details in that case suggest otherwise. However, a much more important case on that particular question was decided late last week. It's the case of Shellee Hale, which we've covered in the past. Basically, Hale posted some information claiming a security breach at another company. She revealed this information as a comment on another site -- and when she was sued, the company demanded she reveal where she got that information from. She claimed that her sources were protected, as she was a journalist.The court ruled against her, saying that because she had "no connection to any legitimate news publication," her own investigations weren't journalism. That's troubling for a variety of reasons, especially given the wide latitude in determining what constitutes a "legitimate news publication." Hale appealed, and unfortunately, the ruling last week from the appeals court upheld the lower court's ruling:
"Simply put, new media should not be confused with news media," wrote Superior Court Appellate Judge Anthony J. Parrillo.The court also claimed that her activities were not journalism because they "exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity."
Again, this is problematic. In an age of participatory journalism, people who do journalism don't need "an established connection or affiliation with any news entity." They can easily establish one with various sites, or they can simply set themselves up as a "news organization" on their own. Furthermore, as technology has changed the whole process of journalism, there's an awful lot about journalism today that "exhibits none of the recognized qualities or characteristics traditionally associated with the news process." That's because the news process is constantly changing -- such as its expansion into participatory efforts these days. This ruling is troubling in that it looks backwards, not forward. It's also a reminder that rather than various broken state laws that shield journalists, it really is time for a federal shield law to protect journalists.
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Filed Under: bloggers, journalists, lawsuits, shellee hale
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I changed my mind. the first up against the wall will be judges followed by lawyers.
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Electing judges just makes them as corrupt as politicians. For an egregious example, take this guy(http://www.nytimes.com/2008/01/15/us/15court.html), the WV chief justice (elected) buddying up with a coal exec, then ruling in favor of the execs company. I wonder how much $ that coal company contributed to the judges campaign?
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Shield Laws are bad
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Re: Shield Laws are bad
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Re: Shield Laws are bad
stolen information is also a misnomer. Information (and misinformation), by nature of the phrase, is public.
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Re: Shield Laws are bad
Shield laws are not a defense against defamation or infringement, so your concerns do not apply. They only say whether or not you need to reveal your sources.
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"Legitimate news publication"
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Re: "Legitimate news publication"
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Comment
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The case becomes more difficult when one calls oneself a journalist. You must realize that there are freelance journalists that do not work for a particular recognized journalistic entity, yet they are journalists not withstanding.
Although Mike is not trained (I believe) as a journalist, but rather as a lawyer and does not work for a big news organization, his postings on this well-known blog clearly constitute journalism. That, I would expect, would qualify him as a journalist. That brings up the real question: What defines a journalistic blog?
Is it the number of readers? I would hope not as that would likely disqualify many smaller, special-interest news journals. Must the owning entity be a recognized newspaper? Again, I would hope not as that would disqualify pretty much ANY new media source becoming a journalistic entity. In my (not so humble) opinion, it would have to be the nature of the articles themselves.
This then challenges your other assertion that if you "critique a movie..." It depends. I'm pretty sure that if your critique consists of "Damn, there's to much blue in Avatar!", you'd be correct! But if you've written, for a blog, a critique that would be much like those in other accepted journals, then you could be argued to be a movie critic. You might not be Roger Ebert, but that doesn't mean you aren't a movie critic.
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Dang, it's hard to find an unknown example! 8-)
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How about using me as an example? I write for TechRepublic.
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I might side a bit with established bloggers getting credentials, but those who merely comment should be afforded nothing....bunch of ACs and TAM walking around with press passes sounds nightmarish.
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I believe you may be misunderstanding shield laws. They're not a "get out of jail free" card that says you can't pin anything on the person. If you break the law, you still broke the law. They only protect you from having to give up your sources.
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There are legitimate reasons a journalist can be forced to give up a source. (The right to free press balanced against another individuals rights, etc.) Could the judge have used that reasoning in this case without trying to redefine journalism?
The reporter was making a comment on someone else's website. Could the judge have just said that the reporter wasn't acting as a journalist at the time?
You don't have to give everyone get-out-of-jail-free cards to still allow bloggers to claim freedom of the press.
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Control is the thing
is. When news is the offical line and the daily
press release then the judges are corrent.
Established news outlets can be more easily
controlled.
Shield laws as they've been twisted and distorted
are doing more to protect the government and ngo
dissemblers than whistle blowers.
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Er...
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See? TechDirt possibly adopting a Reichstagg Fire strategy to getting the comment moderation it wants?
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Careful there... Mike might just designate you as his personal Van der Lube. And, wow, I would NOT want to be in that position.
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LOL! It's actually Van der Lubbe, but your way was much more funny....
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What about this case?
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Then again, most courts could care less about the constitution and routinely ignore what it actually says
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The issue that concerns me about this ruling, and the Federal Courts (preferably the Supreme Court) is that a clear definition needs to be made regarding what actually constitutes bona-fide journalism and therefore entitled to First Amendment press protection (and not just individual speech protection) and what constitutes non-journalism. The courts should not rest their decision on such legal flourishes as "exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity." Please define these "recognized qualities or characteristics".
Keep in mind that this is a state-level court ruling, and could (and most likely will) be appealed to the federal level. Some states, such as California, have stronger free-press protections that go beyond those provided at the Federal level. So until the Federal courts have spoken, this ruling will have little real effect, but that does not diminish the chill.
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So, what about journalists who left news organizations...
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Shield Law
It would be better to have a law protecting journalism, no?
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I think of
http://www.bricklin.com/pamphleteers.htm
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Stolen information
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New versus old media should be irrelevant
As for the specifics of the point of discussion, perhaps the concept of registered and unregistered journalists would be useful. To become 'registered', you would simply identify yourself and declare that you have read and understand a set of basic guidelines and laws that apply to journalists (i.e., shield protection). Registered journalists would be afforded the protections that are available today and unregistered journalists would be on their own. You could even make the 'registry' a value-added function by allowing registering journalists to include their specialty, links to reference work, etc. so that it becomes kind of like a specialized LinkedIn resource.
I don't know... just trying to think of an easy way to solve this.
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Someday soon...
Someday soon this judge will be viewed by all as a ridiculous dinosaur that couldn't see the obvious thing coming...
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"Report this comment" feature
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er2
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I do not believe that is accurate, they also have protections in place for factual language believed to be secret or slanderous.
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All information is public?
Information (and misinformation), by nature of the phrase, is public
Hey, Designerfx! Your real name, birth date, SSN, and mother's maiden name are information. Wanna make that public?
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the point wasnt to make a comparison, just saying that its stupid to say critiquing movies doesnt make you a critic
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pathetic
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lusr
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should retire
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characteristics traditionally associated
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Who is to say what a journalist should act like or who they work for for that matter. These days there are lots of independent news outlets from small blogs to mainstream magazines.
Jake
phlebotomy training
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