It’s a funny thing that happens when someone buys a car, especially when they think they’re buying a none-too-common sort. I buy a Mitsuyota RoadWidget, in part because it is distinctive, and next thing I know, they’re everywhere! A similar thing happens when one starts blogging in earnest apparently. Substantive issues that may have long been around may have flown under the personal radar since they weren’t perceived as personally relevant. Write an article or three and next thing ya know, there’s significant current debate surrounding related issues all over the place.
Cases in point. As I’m scanning the headlines today looking for fodder, I find what appear to be three relevant articles.The first is a blog article by Robert J. Ambrogi, a media and technology lawyer in Rockport, MA, “1st Circuit Rules Public Has Right to Videotape Police,” August 28, 2011. The second is an article by Richard Chirgwin published in The Register on December 6, 2011, “‘Blogger not a journalist’ says Oregon court: The $2.5 million defamation distinction.” The third article, “Crystal Cox, Oregon Blogger, Isn’t a Journalist, Concludes U.S. Court–Imposes $2.5 Million Judgement on Her,” was posted by Curtis Cartier at SeattleWeekly Blogs on December 6, 2011.
On reading the Ambrogi article, I felt a certain exhilaration at discovering that no matter how the police may try to distort the law to shield themselves from accountability, the courts could and would come to the rescue of the common citizen, or, in this case, the “citizen journalist.” In Simon Glik’s words:
In 2007, while walking through Boston Commons, I saw a teenager being arrested by Boston police. After I took out his [sic] cell phone and recorded the arrest, I was myself arrested and charged with felony of “illegal wiretap”. This arrest was a vindictive attempt by some unscrupulous cops to suppress citizens’ right to record, observe and comment on police actions.
Ambrogi highlights the significant bits of the decision as they pertain to citizen journalism. For me, the joy-inducing line was, “The First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.” Now that is empowering.
As I was riding high on this new-found citizen power, the Internet quickly stuck pins in that bubble, the pins being the Chirgwin and Cartier articles. In the case reported by them, a “citizen journalist,” (at least as I thought I understood it from Ambrogi and the First Circuit) Crystal Cox, is sued by plaintiffs for defamation and the plaintiffs win. Cartier provides a bit more detail about the case than Chirgwin does, yet both home in on the same relevant aspect, that U.S. District Judge Marco A. Hernandez decided that Cox does not enjoy protection under Oregon’s shield law because she is neither media nor a journalist.
Here’s the language as quoted by Chirgwin:
[A]lthough defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law”, wrote US District Judge Marco A Hernandez in his judgment.
Here it is as quoted by Cartier:
. . . although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law
On its surface, ignoring the punctuation for the moment, the quote pricked my bubble because it seems to fly directly in the face of what I thought I’d just learned from the Glik case. From Glik I understood that the First Amendment right to gather news does not inure solely to the benefit of the news media and that the public right of access to information is coextensive with that of the press. Yet here is a judge that seems to make the case that the right to gather the news does indeed inure solely to the news media and that the public right is not coextensive.
But am I just reading that all wrong? Maybe the right is to gather but not to report the news? Now wouldn’t that be odd? Journalists, by that measure, would only be protected in the role of researcher but not in the role of reporter.
It’s when I took the next apparently obvious step of reading Judge Hernandez’ judgment that I came to two conclusions. First, there’s occasionally something rather specious about Judge Hernandez’ reasoning and second, there’s something a bit peculiar in the reporting by Chirgwin and Cartier. The latter is where we go back for a moment and look at minor punctuation issues and their disproportionate effect on the sense of quotations.
Both Chirgwin and Cartier appear to be sounding an alarm (or maybe that’s just me seeing more RoadWidgets) by emphasizing Judge Hernandez’ distinction between Cox (bloggers) and journalists. There’s rather a bit more to it than that, however. Look at that variant punctuation again. “[A]lthough” and “…although” obviously imply something came before. Chirgwin’s comma at the end may not imply anything, but Cartier’s missing period certainly implies more follows. Here’s the actual quote from the judgment:
First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet,news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
Ah-hah! Granted, I feel I should be bothered to read the judgment anyway, else I’d just be reporting and opining on the reporting, but even were I not inclined before, I’d be inclined now since the judge obviously has so much more to say.
This case appears to bear out the old adage that a lawyer who represents herself and her client are both fools. In her pro se representation, Cox makes several arguments to defend herself while missing a very simple and obvious piece of the law. Judge Hernandez does a meticulous job of shredding the majority of those arguments without any apparent controversy. It seems Cox would do well to either better educate herself on such matters as the definition of “public figure” and when to submit certain types of motion or to get herself some qualified legal representation. She may have spared herself some grief, or not.
She argued that the plaintiffs shouldn’t even be eligible for damages for defamation because they never demanded a retraction, so she never had the opportunity for the non-compliance that would have justified the damages. As fairly noted by Judge Hernandez in support of his first ruling, Oregon law hasn’t caught up to the Internet yet, so blogs aren’t protected by the retraction statute, see O.R.S. 31.205, and O.R.S. 31.210. Here I take umbrage at what appears to be a lack of journalistic integrity on her part. If her only reason for not issuing a retraction (were she to have a reason) was that they didn’t ask, well, shame on her. As I see it, if I write something and later discover it to merit retraction, it behooves me to do so without waiting for a demand. In any case, her argument makes it sound like it’s possible she would have caved to such a demand for fear of the financial consequences, even were she to hold to her alleged factual basis. Or maybe she would have just rolled over on her alleged source.
Cox argued that the claim against her must be dismissed under Oregon’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. In explanation of his third ruling, Judge Hernandez dismantles her argument on two fronts. First, she dropped the ball procedurally. Second, he’d already determined that plaintiffs are entitled to proceed on one of the offending blog posts, presumably because he sees a probability that the plaintiffs will prevail.
Cox then demonstrates a misunderstanding of “absolute privilege.” Perhaps an attorney would have made the difference for her on this point, but I doubt it given the case law cited by Judge Hernandez. He quite tidily points out that while statements made in a judicial proceeding enjoy absolute privilege, i.e., aren’t subject to defamation claims, at least in this context, republishing same may indeed expose the publisher to defamation claims. To top it off, he then points out that even were there some privilege afforded in that case, it wouldn’t apply because the defamatory statements in her blog post weren’t even such republications.
Implicating First Amendment rights, Cox tries to place the burden of proof on the plaintiffs as “public figures” when it comes to the assertion that she published the allegedly defamatory statements with actual malice. In his fourth ruling, Judge Hernandez schools Cox for several pages as to the court’s role in determining public figure status and just how they do it. Adding insult to injury, he even goes so far to point out that it’s the defendant’s burden to prove that the plaintiffs are public figures, which she clearly failed to do.
Also implicating First Amendment rights, Cox tried to cover her bases on the public figure issue by further making the claim that, because she is “media,” even if the plaintiffs are not public figures they may not recover damages without first proving negligence on her part. In part B of his fourth ruling, Judge Hernandez does something I find rather peculiar. First, he states:
Defendant cites no cases indicating that a self-proclaimed “investigative blogger” is considered “media” for the purposes of applying a negligence standard in a defamation claim.Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is “media,” triggering the negligence standard.
Then, while so declining to conclude she is media, he proceeds to indicate just how she is NOT media:
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. Without evidence of this nature, defendant is not “media.”
Here is the first (second chronologically) instance where I think both Chirgwin and Cartier dropped their own journalistic balls. If, as the First Circuit concludes (if I understand that correctly), the journalistic rights of individuals is coextensive with those of the press, then where, exactly, is the codification of these seemingly arbitrary distinctions of true journalism? Where Judge Hernandez does a great job citing case law after case law throughout his judgment, on this matter his citations are strikingly…missing. Now, I’m sure that bona fide journalists replete with degrees from duly accredited institutions, undisputed affiliations with legitimate media, and adherence to all manner of professional standards likely have some serious grounds for contending that bloggers are not true and genuine journalists. I’d also be willing to place a gentleman’s wager they would cite their sources.
When Judge Hernandez implicates education in journalism, does he only mean formal education under the auspices of an accredited program? He fails to say, but seems to imply such. Would he then discount the journalistic authenticity, if only on the grounds of education, of an editor of a small-town local rag who learned journalism the hard way, by practice?
When he questions her lack of credentials or proof of affiliation, does he mean to imply that such is sufficient to validate a journalist as a journalist? I submit for your consideration…Jason Blair. Excellent affiliation, to be sure, for someone now distinguished as a life coach.
When he challenges her adherence to standards, such as editing, fact-checking or disclosure of conflict of interest, does he bother to indicate her failings at a) editing with an example, b) fact-checking with an example, such as a reminder of her absolute privilege goof (even were she to have it, her defamatory statements were not republication), or c) conflict of interest disclosure with any indication of such a known conflict?
When he challenges her on the keeping of notes from conversations and interviews, did he bother to ascertain that she didn’t?
When he challenges her on the mutual understanding of confidentiality between defendant and source, does he conveniently forget her claim to protection under the shield laws for that very reason? If not, then why even suggest there was no mutual understanding of such, especially when she invokes that protection to her own detriment?
When he challenges her on the distinction between creation of an independent product and assemblage of writings of others, what exactly is he even saying about the nature of the created work? Should authentic journalists NOT assemble a collection of resources, connect the dots and make something of it? Or does he mean to find fault with intellectual property law that protects works like directories, which are solely such assemblages? Does he make a case that in her blog articles she only creates assemblages without contributing anything of her own? Does he consider that, were that the case, clearly the defamatory comments were necessarily extracted from others as sources?
When Judge Hernandez challenges her on whether or not she contacted both sides of the story, where is the assertion that she did not? For that matter, if this is such a critical issue, is he actually thus making the legal claim that Fox News is not media? If so, I would concur, but that’s beside the point.
Most especially, however, for a judge that makes a case again and again on whether there exists a burden of proof and, if so, where it falls, how does he magically determine that the burden of proof falls on her to meet his apparently arbitrary criteria?
As if to make up for these glaring oddities of jurisprudence, Judge Hernandez proceeds, in part C of his fourth ruling, to shoot down her contention that the offending blog post refers to matters of public concern and thus affords her First Amendment protections. He does so with more case law and more clear explanation. It’s rather as though part B of his fourth ruling is neatly bracketed with giant red neon letters stating “What lies between is different!”
The gentle reader may have noticed that I skipped blithely past his Honor’s second ruling. I like to think I saved the best for last.
Regarding the application of Oregon’s shield laws, Judge Hernandez goes so far as to open his comments with the citation to O.R.S. 44.520(1), which reads:
[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by . . . a judicial officer . . . to disclose, by subpoena or otherwise . . . [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]
He goes further and clarifies the essence of “medium of communication” by including the following definition from O.R.S. 44.520(2):
“Medium of communication” is broadly defined as including, but not limited to, “any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”
There’s the hook. There’s the line. Now for the stinker, which just happens to be the source of almost all the substance to be found in Chirgwin and Cartier:
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
Were he to have omitted this one little paragraph, I think Chirgwin and Cartier would still be looking for an article to write. More’s the pity, because by including this little gem, Judge Hernandez opens up a line of inquiry which Chirgwin and Cartier left alone. Had Judge Hernandez just jumped to the next paragraph and stated his denial of the protections of the shield law in this case solely on the basis of O.R.S. 44.530(3) which rules out the shield law defense in civil cases for defamation, he could have dusted off his hands and moved merrily along.
No, he included this gold nugget so I’d have something to play with in these, my first faltering forays into the world of citizen journalism.
First, by including this bit of interpretive nuance, he fails to take into account what he only just included moments ago from O.R.S. 44.510(1): “[n]o person connected with, employed by or engaged in any medium of communication to the public…” [emphasis mine]. Please correct me if I am mistaken, but isn’t the Internet a medium of communication to the public? Further, if one posts content to the Internet without password protection, presumably to limit access to said content to a nominally private or more selective audience, isn’t it safe to say, especially in the case of blogging, that the content is intended for public consumption? On it’s face, (1) here starts down the path to suggesting that bloggers do, indeed, enjoy the protections of Oregon’s shield laws.
Second, by including this paragraph, he fails to take into account what he only just included from O.R.S. 44.510(2): “‘Medium of communication’ is broadly defined as including, but not limited to [emphasis mine],…” If a subset of Communications Media is such that the subset includes the elements A, B, C and D, but the set is broadly defined as including the subset but not limited to the subset, why does Judge Hernandez imply that such a limitation exists when he states that she fails to show affiliation with “any newspaper, magazine, periodical, book, pamphlet,news service, wire service, news or feature syndicate, broadcast station or network, or cabletelevision system.” This is the first of two occasions (the second previously examined above) where he places the burden of proof on the defendant to show that she is media by some arbitrary measure when there isn’t even a requirement to do so at all. Worse, it’s the more damaging of the two, insofar as he goes out of his way to suggest that bloggers, by no stretch of the imagination, are journalists, no matter the standard to which you hold them, and thus neither they nor their sources enjoy any shield law protections.
This, I would think, will have a chilling effect on First Amendment rights as they apply to the blogosphere. Unless, that is, we relegate ourselves to being mere unoriginal collators of others’ works. I don’t care. I’m keeping my Mitsuyota RoadWidget. It’s fun to drive. It’s empowering. And I hope to see someone drive one just like it right into the Supreme Court of the United States.
If I have committed errors or omissions typical of the rank amateur, I beg your indulgence and both encourage and welcome your esteemed corrections lest I become a blight on the face of the blogosphere. In keeping with the spirit of Judge Hernandez’ arbitrary section, “How Do You Tell a Witch Journalist?” I feel I should volunteer the following:
Education: I have read an article on a wiki. I’m not sure which one. I submit that this is hardly an accredited program. My only degree, advanced, at that, is from The School of Hard Knocks. This article is part of my post-doc work.
Credentials/Proof of Affiliation: For credentials, I submit that I possess an original long form birth certificate and a drivers’ license. No, you may not see them. As for affiliation, oh, hell, do I really need to implicate S&R so soon?
Proof of Adherence to “Some” Journalistic Standards: a) Editing – I have indeed strived to eliminate as many errors from this article as I am able. I cannot account for my stylistic excesses. b) Fact-checking – As evidence of some modicum of effort in that regard, I submit everything I have linked in this article. I admit that I have not bothered to look up Crystal Cox’s blog. If her pro se failings are indicative of other kindred failings in writing, life is too short. Besides, my issues, as presented, aren’t with whether or not she defamed or whether or not she writes well. c) Disclosure of Conflicts of Interest – I am a self-proclaimed blogger, investigative or not, and have written this piece in hope of publication at one blog of which I am not an editor and assurance of publication in my own. As far as I know, I will not receive any financial reward for this work.
Notes of Conversations/Interviews: While I did, indeed, talk to myself rather a lot during this effort, I made no recordings. I will, however, email the article itself to myself, if only because I am silly like that.
Mutual Understanding of Confidentiality Between Self and Sources: Nothing was related in confidence to me during the crafting of this article. I am sure, given the state of Internet privacy, or the lack thereof, that there is more information held on theInternet about me and my searches for information than I hold pertaining to my online sources. Further, I’m quite sure my information has been mined and will be sold in aggregate.
Creation of Independent Product: Views and opinions in this article that are not attributed to sources are my own independent product. If you did, somehow, manage to compel me to formulate these views and opinions, I really need to get my tinfoil hat adjusted.
Assemblage of Writings/Postings of Others: Well, yeah. Then I added a ton o’ stuff. Had I not, the article would be far less verbose.
Contact of the “Other Side”: No thank you. My Ouija board is packed up at the moment and quite far away. As for journalistic integrity, I meant to write a position piece in support of First Amendment protections and shield law protections for bloggers. I think at least one other side of the issue has been presented quite thoroughly, and in his own words, throughout, with reference to his full judgment.
Frank Balsinger is a rank beginner of a blogger and feels rather passionately about the last remaining shreds of his Constitutional rights.