U.S. Court Declares Bloggers Second Class Citizens, Not Part of Media

Update: Judge Marco A. Hernandez has since clarified his ruling on this matter, and stated that his ruling was only meant to apply to Crystal Cox, and not all bloggers. Read my latest blog post for the rest of the story.

A U.S. district court just ruled that bloggers — at least bloggers in Oregon — are not part of the media, and therefore, not protected by Oregon’s media shield laws.

As a citizen journalist, this scares the bejeezus out of me. If you’re a blogger of any kind, it should worry you too.

I’ve been clamoring for years that bloggers are citizen journalists. That is, we should be entitled to the same First Amendment protections, the same access, and the same considerations that newspaper, TV, and radio reporters get. At the same time, it means that bloggers need to act like journalists: with great power comes great responsibility, etcetera, etcetera.Handcuffs

But a U.S. District Court judge in Portland, Oregon just set us back to pre-1990 days when he ruled against Crystal Cox, a blogger, after she was sued by Obsidian Finance Group for defamation over blog posts that criticized the firm and co-founder Kevin Padrick. The judge also awarded Padrick $2.5 million.

In his ruling, the judge wrote:

. . . 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.

Seriously? Pamphlets? In other words, if she had slapped together an 8-page booklet at Fedex/Kinko’s, she would have been protected?

Whether this is a problem with the judge not understanding the Internet, or — more likely — Oregon having a media shield law that doesn’t reflect 21st century technology, this may have a chilling effect on bloggers, even in states with media shield laws.

As it stands now, Oregon’s media shield law says:

No 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shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

Seems comprehensive enough: any medium of communication to the public strikes me as anything from newspapers to TV to radio to the Internet (including blogs). But when someone learned about the Internet from the Ted Stevens’ School of Technology, they may not realize that the Internet is far more evolved than pamphlets.

Compare Oregon’s law to Washington’s media shield law:

Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;

(Read more about Washington’s media shield law here.)

Washington at least spells out what they consider to be the media. But any state that has not included “the Internet” in their shield laws may be able to exclude bloggers from the people who should be protected.

In other words, if you are a pamphleteer, you’re protected. If you type something on a typewriter, reproduce it on a mimeograph machine, and staple everything together by hand, you’re protected by the First Amendment. But if you publish the biggest online-only newspaper, and have for the last fifteen years, tough. You’re not protected by media shield laws in Oregon, or several other states.

This will have a chilling effect on your rights as a journalist, as the government can impose sanctions on bloggers and Internet-based writers, simply by declaring they are not part of the protected media.

Photo credit: Tourettte (Flickr)

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    About Erik Deckers

    is the President of Professional Blog Service, a ghost blogging and social media marketing agency in Indianapolis, IN. He has been blogging since 1997, and has been a published writer for more than 26 years. He is a newspaper humor columnist, appearing in 10 papers around Indiana, and in The American Reporter. Erik co-authored No Bullshit Social Media with Jason Falls (2011, Que Biz-Tech), and Branding Yourself with Kyle Lacy (2nd ed., 2012; Que Biz-Tech). His latest co-authored effort, The Owned Media Doctrine, was released in 2013.

    Comments

    1. Tia Nielsen says:

      Erik, I think your points are valid, especially in light of the practice of multitudes of court decisions based on precedent. As a freelance writer and journalist, it is also disconcerting to see that that is another category not covered (from what I could see) in either the Oregon or Washington media laws. Yet “official” new outlets continue to release staff and hire freelancers as a cost cutting measure. The Indianapolis Star,–owned by Gannet, the publisher of USA Today– has released so many the past few years that the remnant picketed the downtown office recently.

      My main point is that freelance writers for print or online are not protected. Although I have always preferred the stimulation of working with a variety of publications, the risk does enter my mind when deciding on topics.

    2. Michael, I agree that this ruling is an interpretation of law. But too many times interpretations are often cited as precedent in new cases. And a ruling at the U.S. District Court level is much bigger than, say, a small city court. That precedent carries more weight than that city court ruling.

      I also agree that a majority of bloggers don’t need that protection, but this is true of most protective laws. Most traditional journalists don’t need to sue for First Amendment protection in their lives. Most people are never involved in a case where Fourth Amendment is important to them. But when the law and its rulings change for one, it has the potential to affect everyone.

      This is why different civil liberties groups are concerned when a basic amendment comes under fire. It’s why the NRA leaps into the fray during any kind of gun lawsuit. It’s why the ACLU defends people during a First Amendment battle. If it changes a little bit for one, it can change a lot for another.

      I think this particular case needs to be a warning to any blogger who practices citizen journalism — and there are a lot of them — that they need to be aware of their state’s media shield laws, and whether they’re protected or not.

    3. Michael Ritter says:

      I appreciate your concern but the reality is that the vast majority of bloggers DO NOT need the protection of media shield laws because their blogs do not have significant commercial interests nor do they have any vested interest in publishing sensitive material.

      Furthermore, you should note that a ruling from a given US district court is simply an interpretation of law, not law itself. In other words another judge can refer to the precendent it sets, but an issue must be raised in court for that to happen.

      With that being said, before bloggers go off crying foul play, spending some time with a lawyer who specializes in advertising and publishing law might not hurt.