In the rush to defend blogs as a medium of journalism, we ask the wrong questions about what press freedom seeks to protect
Last week, a federal judge ruled that Crystal Cox, a blogger in Montana, owed $2.5 million to an Oregon lawyer and his company, Obsidian Finance Group. The judge ruled that as a blogger not employed by a media organization, Cox was not protected by Oregon's state shield law that gives privilege to journalists from these sorts of lawsuits.
In his decision, Judge Marco Hernandez went out of his way to say that Cox does not count as a journalist (later deciding that it didn't matter):
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 cabletelevision system. Thus, she is not entitled to the protections of the law ...
Perceiving attack, the Internet's collective fur shot up on its back: Do bloggers not merit the same protections as journalists?
Many people have argued that the medium in which you publish should have no bearing as to whether you receive the protection of a state's shield law (something 39 states and the District of Columbia now have). But this argument answers the wrong question, because we're not asking the right ones about how we protect the free flow of information -- and balance that free flow with other values such as a right to defend oneself in court -- in a day when anyone can publish online.
The problem is often framed -- wrongly -- this way: Do bloggers count as journalists? For example, the New York Times "Room for Debate" feature is titled "Are All Bloggers Journalists?" The description of the online forum asks, "How should judges decide who is protected and who isn't?" Kelli L. Sager, a First Amendment lawyer participating in the debate, writes, "Because most laws were written before the Internet existed," she explains, "they often refer to then-existing media -- newspapers, magazines and the like -- or simply to 'journalists,' without defining who is a journalist." The central framing is always "who is a journalist" -- who, who, who. The question of protection always rests on the question of who the person is that is committing the act of journalism. Is this person a journalist?
The idea that press freedom is about protecting journalists is anachronistic, something we have pasted onto an older idea. When Thomas Jefferson wrote about press freedom, the idea of a professional journalist didn't exist in any modern sense. His ideas were motivated by the dual legacies of licensing and censorship. In the 17th century, censors regulated presses so tightly that only licensed printers could operate and they could publish only books explicitly approved by the queen. For Jefferson, a protection for a particular, favored business would have smacked of exactly the sort of licensing scheme he was trying to avoid.
The Supreme Court has constantly displayed an aversion to privileging a class of reporters with rights that regular citizens do not have: New York Times v. Sullivan (1964), the defining case on libel, applied just as much to the four clergymen who were being sued as it did the paper of record. ("Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer," Justice Brennan wrote.) In Branzburg v. Hayes (1974), the only time the Supreme Court has considered the concept of a shield law, the Court declined to create one.
The age of the institutional media today looks like a flash in the pan, an aberration from the more-normal mode of citizen publishing. It's not something we should seek to preserve artificially through laws. When we do, we end up trying trying to divine principles that can help us draw lines between journalists and everybody else. Well, what is their practice? we ask. Do they have sources? Do they have notebooks? Does this person look like a journalist?
These questions are good proxies for the ones we mean to ask: Does this information aid us as citizens? Does it help us understand government, or help to right some wrong? It's the quality and content of the information that matters to press freedom, not the people spreading it. The "who" proxy will work nine times out of 10, but for the sake of that tenth time, we should try to ask the more central question of "what" the information is that's at stake.
That's why the first instinct of so many people upon learning of the Cox case was to rush to her defense, as David Carr writes. But all was not as it seemed. Writing in today's New York Times, David Carr describes how he -- like many other writers -- began to reassess his initial reaction.
As the details came into focus, journalists everywhere breathed a sigh of relief. She's not a journalist; she's just a crazy lady with WordPress! We don't need to protect her. But the reason we don't need to protect Cox isn't because she's not a journalist. It's because, as Carr describes, her information was bad. "None of it was ever proved," he says. If she had indeed exposed criminal wrongdoing and the Judge had not protected her, we should be outraged. But that's not the case.
Journalists who work for big institutions will continue to have better protections -- not because of laws that protect them but because of the legal power their companies can buy. For everyone else, we should hope that we haven't legislated non-journalists out of the protections the First Amendment seeks.