Appeals Court Upholds Ruling That Blog Commenter Was Not A Journalist

from the too-bad dept

Tue, Apr 27th 2010 9:20am — Mike Masnick

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

64 Comments

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senshikaze (profile), 27 Apr 2010 @ 9:30am

so, now that they have gone after the "pirates", the consumers, the bloggers, and the youtube poster, when do we get a chance at the rebellion?
I changed my mind. the first up against the wall will be judges followed by lawyers.
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JoeNYC, 27 Apr 2010 @ 9:30am

Shield Laws are bad
The Court was unwilling to extend shield laws to cover anyone with a PC and an opinion. Why? Because they are bad. Why should ANYONE be shielded if they defame or if they use stolen information to write a story? Shield Laws must go.
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Anonymous Coward, 27 Apr 2010 @ 9:31am

"Legitimate news publication"
Oh-oh, Fox News better watch out!
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Anonymous Coward, 27 Apr 2010 @ 9:33am

Re: Shield Laws are bad
Stolen information? How is information stolen? Information is not stolen.
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Anonymous Coward, 27 Apr 2010 @ 9:34am

More examples of the government keeping the status quo. This is only designed to keep the incumbents in business and to restrict competitors from competing with incumbents. Nothing more.
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Anonymous Coward, 27 Apr 2010 @ 9:37am

Re:
This is why we need a process to hold judges accountable to the people. Judges should be elected by the people and they should be forced to run for re - election every so often. This lifetime nonsense doesn't work. It may have made a bit more sense back in the days when things changed more slowly, but it makes far less sense now.
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Joel (profile), 27 Apr 2010 @ 9:42am

Comment
She wrote a comment not a story of course she is not a journalist. If she had written a story then perhaps she could be qualified as a journalist. Just because I critique a movie that doesn't make me a movie critic, or because I tell someone to take an aspirin it doesn't make me a doctor.
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iamtheky (profile), 27 Apr 2010 @ 9:44am

By your reasoning everyone who is sued because of speech or text online should defend themselves as an internet news organization, merely reporting. Like getting caught stalking and declaring yourself a private investigator under employ of yourself.

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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:Lobo Santo (profile), 27 Apr 2010 @ 9:44am

Re: Re: Judged Vote?
"Judges should be elected by the people and they should be forced to run for re - election every so often."
This only works as long as the active 'normal' voters are not outnumbered by the active 'criminal' voters.
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Anonymous of Course, 27 Apr 2010 @ 9:45am

Control is the thing
It's all a matter of what your definition of news
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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Designerfx (profile), 27 Apr 2010 @ 9:45am

Re: Shield Laws are bad
so what exactly is bad about a shield law?

stolen information is also a misnomer. Information (and misinformation), by nature of the phrase, is public.
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Dark Helmet (profile), 27 Apr 2010 @ 9:48am

Er...
What the fuck is going on with the non-sensical comments? More public fodder for comment moderation?
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senshikaze (profile), 27 Apr 2010 @ 9:57am

Re: Er...
we really need a "report this comment" button.
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Marcus Carab (profile), 27 Apr 2010 @ 10:00am

Re: Er...
I thought it was just TAM further refining his debate style...
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Technomite, 27 Apr 2010 @ 10:00am

What about this case?
How does O'Grady v. Superior Court play into this all. The court found against Apple and the informants were not revealed. Does this only protect the John Doe who sold the phone and still leave Jason Chen liable because of the ruling you speak of?
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Dark Helmet (profile), 27 Apr 2010 @ 10:01am

Re: Re: Er...
I have to say, the BJ and the Bear and Hong Kong Phooey lyrics had me giggling....
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The Infamous Joe (profile), 27 Apr 2010 @ 10:07am

Re: Re: Er...
Clearly he is improving.
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Dennis Yang (profile), 27 Apr 2010 @ 10:10am

Re: Re: Er...
Sorry folks.. took care of it, and yes, we do need some "report this comment" type features amongst others -- it's on our list of things to do.
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Dark Helmet (profile), 27 Apr 2010 @ 10:11am

Re: Re: Re: Er...
"Sorry folks.. took care of it, and yes, we do need some "report this comment" type features amongst others -- it's on our list of things to do."

See? TechDirt possibly adopting a Reichstagg Fire strategy to getting the comment moderation it wants?
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Anonymous Coward, 27 Apr 2010 @ 10:12am

Re: Re: Er...
tam hasnt posted here is ages. why would she?
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Anonymous Coward, 27 Apr 2010 @ 10:15am

How in the world can Journalists get "special protection". I thought we were all entitled to equal protection under the law?

Then again, most courts could care less about the constitution and routinely ignore what it actually says
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Mike Masnick (profile), 27 Apr 2010 @ 10:26am

Re: Shield Laws are bad
The Court was unwilling to extend shield laws to cover anyone with a PC and an opinion. Why? Because they are bad. Why should ANYONE be shielded if they defame or if they use stolen information to write a story? Shield Laws must go.

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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Mike Masnick (profile), 27 Apr 2010 @ 10:28am

Re:
By your reasoning everyone who is sued because of speech or text online should defend themselves as an internet news organization, merely reporting. Like getting caught stalking and declaring yourself a private investigator under employ of yourself.

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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R. Miles (profile), 27 Apr 2010 @ 10:30am

So, what about journalists who left news organizations...
... to start their own online blogging community? Wouldn't this ruling also put them in the same position should they post a comment from an unidentified source?
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Anonymous Coward, 27 Apr 2010 @ 10:36am

Re: Re:
in the end it is a double edged sword. in theory a journalist can make stuff up, claim an anonymous or confidential source, and never have to give that non-existent person up. it is actually the risk in this case as there is a chance that ms hale has no source at all. so at what point is it not a get out of jail free card?
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Free Capitalist (profile), 27 Apr 2010 @ 10:42am

Re: Re: Re: Re: Er...
TechDirt possibly adopting a Reichstagg Fire strategy to getting the comment moderation it wants?

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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Dark Helmet (profile), 27 Apr 2010 @ 10:44am

Re: Re: Re: Re: Re: Er...
"Van der Lube"

LOL! It's actually Van der Lubbe, but your way was much more funny....
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Special Case, 27 Apr 2010 @ 10:48am

Re:
She is not asking for any "special protection" here as an individual. Rather she is asserting her right to a free press accorded by the First Amendment, as a member of "the press". These are two different things, but I can understand where it might get confusing. Depending on what someone is doing, they might wear a different "hat" and that "hat" determines what rights and responsibilities apply. Every citizen has the right to be heard and to speak freely regardless of occupation, race, creed or color. Now, in certain occupations, such as those in the press or clergy, special First Amendment protections are given to those acting in that capacity, not as individuals.

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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William N (profile), 27 Apr 2010 @ 10:49am

Shield Law
"it really is time for a federal shield law to protect journalists."

It would be better to have a law protecting journalism, no?
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Any Mouse, 27 Apr 2010 @ 10:59am

Re: What about this case?
Please read the WHOLE article? This piece is NOT about Chen, it's about Shellee Hale.
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Jon B. (profile), 27 Apr 2010 @ 11:06am

Re: Re: Re:
Either way, the reasoning in this case is retarded.

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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bob, 27 Apr 2010 @ 11:06am

I think of
Benjamin Franklin and other pamphleteers are thrashing in their crypts.

http://www.bricklin.com/pamphleteers.htm
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Joe NYC, 27 Apr 2010 @ 11:08am

Stolen information
I was talking about confidential information, state secrets, trade secrets, etc. Shield Laws protect the unlawful dessimenators of this information.
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JoeNYC, 27 Apr 2010 @ 11:12am

Re: Re: Shield Laws are bad
You are correct. However they do protect the malfeasor who has divulged confidential information, state secrets or trade secrets.
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McBeese, 27 Apr 2010 @ 11:14am

New versus old media should be irrelevant
I too am worried by this ruling. I worry that the country is overloaded with judges and politicians who are generally out of touch with the social Internet. How can one expect a quality ruling from judges who are unclear on the concept? It's like going to a priest for marriage counseling.

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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PRMan, 27 Apr 2010 @ 11:17am

Someday soon...
"Simply put, new media should not be confused with news media," wrote Superior Court Appellate Judge Anthony J. Parrillo.

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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Anonymous Coward, 27 Apr 2010 @ 11:26am

Re: Comment
You just wrote a comment on this blog, not a story. Now we need a court to force techdirt to reveal your identity.
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Anonymous Coward, 27 Apr 2010 @ 11:28am

"Report this comment" feature
I sincerely doubt a "report this comment" feature is necessary. We need "Not written by Mike" button. After all, only people named Mike comment here.
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Anonymous Coward, 27 Apr 2010 @ 11:28am

Re:
So then we need a judge to force techdirt to reveal your identity. Or does the law only apply to others. Why are you hiding behind an anonymous pseudoname if you think that anyone being sued should be forced to have their identity revealed?
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Joel (profile), 27 Apr 2010 @ 11:36am

Re: Re: Comment
You sir or madam are a loser. There is no reason for a court to force techdirt into revealing my true identity because I didn't make a comment about some companies secrets or what not...
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Anonymous Coward, 27 Apr 2010 @ 11:37am

Re: Re:
This is why we need a process to hold judges accountable to the people. Judges should be elected by the people and they should be forced to run for re - election every so often. This lifetime nonsense doesn't work. It may have made a bit more sense back in the days when things changed more slowly, but it makes far less sense now.

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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Greg, 27 Apr 2010 @ 11:41am

Re: "Legitimate news publication"
Watch out for what? They're legit, which is more than I can say for CNN, MSNBC, NBC, ABC, CBS, NPR, etc.
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Anonymous Coward, 27 Apr 2010 @ 11:47am

Re: Re: "Legitimate news publication"
Only if you're a facist.
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mike allen, 27 Apr 2010 @ 11:51am

er2
have they or you never heard of "freelance" journalists who wrok independently of any news org.
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Anonymous Coward, 27 Apr 2010 @ 12:26pm

Re: Re:
asks the anonymous poster.
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crade (profile), 27 Apr 2010 @ 12:29pm

Your not a journalist because you don't behave like a journalist traditionally behaves :)
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Anonymous Coward, 27 Apr 2010 @ 1:27pm

Re: Re: Re: Judged Vote?
if the criminal voters makeup the majority, it's not criminal at all. It's special interest laws bought by the few and imposed on the many.
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Anonymous Coward, 27 Apr 2010 @ 1:29pm

Re: Re: Re: Shield Laws are bad
So what's your point again? Since you now know that your argument was flawed from the get go.
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Anonymous Coward, 27 Apr 2010 @ 1:44pm

"They only protect you from having to give up your sources."

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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Anonymous Coward, 27 Apr 2010 @ 1:55pm

Re: Comment
Your doctor analogy does not hold. To call oneself a doctor, one must have a doctoral degree in the appropriate field. I cannot call myself a Doctor of Medicine because I do not have a Doctorate of Medicine.

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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ondigo, 27 Apr 2010 @ 1:57pm

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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Anonymous Coward, 27 Apr 2010 @ 1:58pm

Re: Re: Comment
Hrmmm. Mike's a bad example because his creds are clearly that of a journalist. But you could use me. I write for several blogs and write of a journalist nature. I don't work for a recognized news source, but my work can none the less be considered journalism.

Dang, it's hard to find an unknown example! 8-)
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Anonymous Coward, 27 Apr 2010 @ 3:08pm

Re: Re: "Legitimate news publication"
obvious troll is obvious
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Anonymous Coward, 27 Apr 2010 @ 6:39pm

Re: Re: Re: Comment
you cant consider anonymous as a journalist..your anonymous
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Anonymous Coward, 27 Apr 2010 @ 6:41pm

if critiquing a movie doesnt make you a movie critic wat does? having sex with animals? being a murderer?
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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Anonymous Coward, 27 Apr 2010 @ 7:35pm

Re: Re: Re: Re: Comment
That would mean, existentialistly speaking, that I am you and you are me.
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Anonymous Coward, 27 Apr 2010 @ 8:57pm

pathetic
What a shame that individuals so out of touch with the present and reality are allowed to be in the position of a judge...
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Anonymous Coward, 27 Apr 2010 @ 9:03pm

lusr
Judge Anthony J. Parrillo uses AOL.
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Anonymous Coward, 27 Apr 2010 @ 9:05pm

should retire
how can you judge something that you don't even understand?
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Anonymous Coward, 28 Apr 2010 @ 6:55am

Re: Re: Re: Er...
See if you can copy DailyTech's comment section layout. In my opinion, its really good especially with the laddering of respond comments.
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Ed Woychowsky, 28 Apr 2010 @ 9:48am

Re: Re: Re: Re: Re: Comment
Then you're talking to yourself, a bad sign.

How about using me as an example? I write for TechRepublic.
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Anonymous Coward, 29 Apr 2010 @ 10:44pm

characteristics traditionally associated
It's OK, most judges these days also "exhibits none of the recognized qualities or characteristics traditionally associated with" justice.
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Jake Newman, 23 Feb 2011 @ 1:04pm

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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Rachel Shaw, 24 Jan 2013 @ 11:33am

I worked as a contract designer for Ms Hale on the website that the prosecutor is claiming is fictitious. I know the whole situation. They said because it wasn't up yet there is no evidence and would not allow me to submit proof that I had. Shellee is a brilliant woman and an incredible investigator and works to solve missing-persons cases and with NGO's and this is an injustice of epic proportions.
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