Should all bloggers be considered journalists and protected as such?

[miamouse]

http://blogs.salon.com/0000014/2005/04/11.html#a863
http://www1.pressdemocrat.com/apps/p.../APN/504110934

It appears that some Apple employees may have violated a secrecy agreement, and Apple has asked the blogger’s ISP to supply email records so they can track down and presumably prosecute, the employee(s) who leaked information. The AP and many others have rallied behind the blogger in an appeal of a recent ruling by a judge to release the information to Apple.

I understand the AP’s stake in this as setting a precedent, their points being that journalists shouldn’t be made to become informants for the government, and possible interference in the First Amendment people’s right to know.

What disturbs me is that the AP is basically getting behind any yutz with a computer and the ability to code who doesn’t even need to reveal his real name. I’ve been disappointed in what journalism has become, and the fact that the AP would stand behind bloggers gives keen insight into why journalism has become what it is.

The second link above compares sharing a company’s trade secrets to the importance of revealing what went on at Enron and Worldcom. I am also surprised that others in the technology industry haven’t rallied around Apple in the same way.

(If it even needs to be said, I’d rather this not become a platform discussion, please refrain from turning it into one.)

[Whack-a-Mole]

I do not know that there is any official distinction for Journalists in law. By that I mean it is not like being a priest where by virtue of your training and oaths you gain certain legal protections that no one else enjoys. Journalists are protected by the Constitution the same as anyone else and do not enjoy a "special" status that is only conferred by, say, having a Journalism degree and working for a recognized media company.

So, assuming I am correct in my assumptions, a blogger deserves the same legal protections as any other Journalist.

I think the AP standing behind bloggers is a good thing overall. I too do not like what Journalism has become to a large extent (owned by large corporations and tending to serve the corporation's interests rather than an unprejudiced search for the truth). Bloggers at least seem to be a new way for the truth to get out. Certainly there can be any number of yo-yos pushing their own agenda so sorting the wheat from the chaff may be difficult but at least a new avenue for citizens to get to the truth is a good thing.

All of that said I am not aware of it ever being ok for a reporter (or anyone) to break the law in order to get a story out. If a blogger did something illegal then they should be given up to the courts. There are whistleblower laws on the books to protect those who try to bring to light something bad a corporation is doing and if this falls into that category the courts will sort it out. If the person was just being malicious then they'll probably have their ass handed to them.

[ultrafilter]

If the Apple employees signed an NDA, they're probably up the creek without a paddle. If not, it's a grayer area.

If bloggers are going to be given any kind of status as journalists, they need to be held to the same sorts of standards as the other journalists.

[THespos]

Neither deserves any special protection beyond what is extended to the average U.S. citizen.

[Marley23]

Originally Posted by Whack-a-Mole

I do not know that there is any official distinction for Journalists in law.

I don't think it's well defined. See below.

Journalists are protected by the Constitution the same as anyone else and do not enjoy a "special" status that is only conferred by, say, having a Journalism degree and working for a recognized media company.

Not true. We have the right to keep sources confidential, although it's not unlimited. Remember Vanessa Leggett? She claimed she didn't have to reveal a source because she was a journalist working on a book, but since she had no book contract and was "virtually unpublished," it was ruled she was not a journalist.

So, assuming I am correct in my assumptions, a blogger deserves the same legal protections as any other Journalist.

The Supreme Court disagrees. If everybody's a journalist - and anybody can have a blog, so if anything it's more relevant now - the idea that journalists have legal privileges to protect confidentiality goes away. You can't have a journalistic privilege if everybody's a journalist, and if journalists don't have the ability to protect their sources it creates a chilling effect on those sources.

Perhaps a concrete, legal definition of 'journalist' is called for, though I'm sure any attempt to define it would create problems of its own. The Court put a lot of emphasis on publication and the intent to publish, which obviously is only a part of the whole reporting process. In fact it's the end part. What Rosenberg says about asking questions with intent to publish and publishing material that someone considers news sounds like it's about right, but it's important not to be too vague.

[Whack-a-Mole]

Originally Posted by Marley23

Not true. We have the right to keep sources confidential, although it's not unlimited. Remember Vanessa Leggett? She claimed she didn't have to reveal a source because she was a journalist working on a book, but since she had no book contract and was "virtually unpublished," it was ruled she was not a journalist.

The Supreme Court disagrees. If everybody's a journalist - and anybody can have a blog, so if anything it's more relevant now - the idea that journalists have legal privileges to protect confidentiality goes away. You can't have a journalistic privilege if everybody's a journalist, and if journalists don't have the ability to protect their sources it creates a chilling effect on those sources.

This makes no sense to me. I'm not arguing you are wrong in describing the current state of law in this area...just that it makes no sense I can discern.

First, you are not a journalist unless someone is paying you to write (as the "no book contract" seems to imply)? Swell...let's put writing for public disclosure firmly under the thumb of people with money.

Second, "virtually unpublished" means you have no protection as a Journalist? So, say you are on your first assignment for a paper you can get busted? How many articles/books do you need to get out before you enjoy some legal protection?

Third, how is it if "everybody is a journalist" privileges to confidentialty go away? Why can't everyone have that privilege? If you write whatever it is you've found in a blog then you have published. If you don't then you are like any other schmo in court being asked how you learned what you know.

I suppose one could envision a case where everyone would merely write down whatever and put it on some out of the way website and thus claim "protection" from what they wrote but it seems one could still show their intent. Journalists do not get blanket protections. They can be hit with libel, must show an effort at reporting the truth (or absence of malice?) and so on. I think one could also show that with a blog their intention was to publish for public consumption.

I certainly think all people should have the same protection as journalists. At least unless/until Journalists become a professional degree ala Lawyers and Doctors and have to pass a test, get regular re-testing and be subject to a professional licensing organization.

[Steve MB]

Originally Posted by miamouse

What disturbs me is that the AP is basically getting behind any yutz with a computer and the ability to code who doesn’t even need to reveal his real name.

I don't see how that's different from being any yutz with a printing press and the ability to operate it.

Certainly, "Publius," "The Federal Farmer," "Cato," "Brutus," and "Cincinnatus" would have been... intrigued... by the notion that revealing your real name is a prerequisite for enjoying freedom of the press.

[miamouse]

Originally Posted by Whack-a-Mole

At least unless/until Journalists become a professional degree ala Lawyers and Doctors and have to pass a test, get regular re-testing and be subject to a professional licensing organization.

We've also had this discussion at work. The problem lies in: "Report on this or lose your job" vs. "report on this and we can make your life so difficult that you can lose your license." Reporters themselves don't get to say what the end product is; there are a string of editors and managing editors and various other corporate people guiding what gets printed. There's where bloggers could serve a good purpose: unfiltered and unfettered from advertising and corporate restraints.

I am still closer to believing that just because you can publish something doesn't mean you should. Does your typical blogger bring ethics into what he is putting up on his site, or is he thinking "this is my site, I'll put up what I want" regardless of checking his sources for verity?

[Whack-a-Mole]

Originally Posted by miamouse

I am still closer to believing that just because you can publish something doesn't mean you should. Does your typical blogger bring ethics into what he is putting up on his site, or is he thinking "this is my site, I'll put up what I want" regardless of checking his sources for verity?

Well...if it is your site then write whatever you want. Certainly this makes for a big pile of bloggers of whom you have little way to know if they have an agenda or are really guided by ethics and a desire to write the truth (with the understanding that "truth" can be a slippery thing seen differently by different folks). You as the reader need to sort through it all. Still, bloggers may gain a reputation just as any paper does. Over time some blogs will float to the top as worthwhile and sort themselves into categories (liberal/conservative for instance).

Nevertheless if you publish your writings you do need to adhere to laws already on the books. Libel can get you for instance. Admittedly that allows a very wide latitude anyway as a screed from the likes of the KKK might indicate. It is my impression the United States, as a nation, has always taken the stance of avoiding censorship pretty seriously. Yes, parents get books removed from libraries sometimes and stabs at censorship are common but so far, by and large, you can still pretty much write what you like within some loose bounds. It just worries me that this indicates that some in our society are more protected than others from publishing what they like.

[Marley23]

Originally Posted by Whack-a-Mole

First, you are not a journalist unless someone is paying you to write (as the "no book contract" seems to imply)? Swell...let's put writing for public disclosure firmly under the thumb of people with money.

I get the sense that they did not define what a journalist is so much as they explained why Leggett wasn't one, and we're left to go from there. The reasons they gave, in her case, are not so awful.

Second, "virtually unpublished" means you have no protection as a Journalist? So, say you are on your first assignment for a paper you can get busted? How many articles/books do you need to get out before you enjoy some legal protection?

If you were working for a newspaper - which she wasn't, she was doing this on her own - there's clearly intent to publish and I don't see why there would be a problem. While she had a book idea she did not have a contract for it. She was not given protection because it was a murder case, it was possible she knew things nobody else did, and there was no way to know that her potential book would ever see the light of day.

Third, how is it if "everybody is a journalist" privileges to confidentialty go away? Why can't everyone have that privilege?

Because then it isn't a privilege. And it's not one that everybody needs to do their job. If everybody can claim "I'm a journalist, so you can't make me reveal my source for this statement that I made," it would probably be eliminated because it would make prosecuting any case difficult.

[BrotherCadfael]

This issue came up for quite a bit of online discussion when the journalists who received the "outing" of Valerie Palme were suppoenaed. The Volokh Conspiracy, a blog written by a number of law professors, covered the issue extensively, as did many other sites.

The following is based on my readings of this discussion, and is not authortative.

As I understand it, there is no journalistic privilege to keep sources confidential at the federal level. Journalists who are witnesses to crimes (in this case, the crime of leaking classified information) are no less obligated to testify about what they witnessed than any other citizen.

Various states have enacted shield laws which offer some degree of protection to journalists, but these protections are not absolute. Generally, the state needs to show that the information that the journalist can provide is vital to the state's case, and cannot be obtained in any other way.

Some federal judges have followed a similar policy in issuing supoenas to journalists, but this is not required by the Supreme Court or by precedent.

In large part, the Court's reasoning has been that there is no reasonable test to separate a person recognized as a journalist from a person not so recognized.

With the lowering of the technological barrier to publication, the distinction is increasingly hard to make. Is Glenn Harlan Reynolds (Instapundit) less of a journalist than, say, David Broder? Many bloggers write columns for printed-on-paper publications. Are their blog posts less protected under the First Amendment than their paper columns? This seems implausible. Is the blog post of a blogger who does not write a column less protected than a blogger who does? This seems implausible as well.

[Whack-a-Mole]

Originally Posted by Marley23

I get the sense that they did not define what a journalist is so much as they explained why Leggett wasn't one, and we're left to go from there. The reasons they gave, in her case, are not so awful.

If you were working for a newspaper - which she wasn't, she was doing this on her own - there's clearly intent to publish and I don't see why there would be a problem. While she had a book idea she did not have a contract for it. She was not given protection because it was a murder case, it was possible she knew things nobody else did, and there was no way to know that her potential book would ever see the light of day.

So, New York Times journalist does exactly the same thing Leggett does and he/she is protected? That seems wrong somehow. Journalists are not specially licensed nor even necessarily specially trained (as a doctor must be although of course one could be specifically trained in journalism). What makes them special deserving of special protection? That they are paid to write by a notable periodical?

Because then it isn't a privilege. And it's not one that everybody needs to do their job. If everybody can claim "I'm a journalist, so you can't make me reveal my source for this statement that I made," it would probably be eliminated because it would make prosecuting any case difficult.

No, not everyone needs the special privilege to not reveal sources to do their job. But, if their goal is to write something for public consumption then the right to withhold sources is every bit as important to them as it is to a paid journalist. It would be one thing if Leggett were just some average person who came by knowledge of a murder. It is another if Leggett does the leg work to track down the story and part of getting that story is promising confidentiality to sources. To say that ONLY people currently employed by the media or a person with a contract to write said book are the only ones deserving of claiming that privilege is wrong on many levels. A free press is considered vital to the health of a democracy. Our "free" press has shown itself of late to have agendas of their own making what they tell is at least worthy of some suspicion. It is in society's interest to allow a true "free" press to exist. In the past that might have been a small printing press and nailing something to a tree in the town square. Today it is blogs. Different technology...same idea and importance.

[miamouse]

Originally Posted by Steve MB

I don't see how that's different from being any yutz with a printing press and the ability to operate it.

Certainly, "Publius," "The Federal Farmer," "Cato," "Brutus," and "Cincinnatus" would have been... intrigued... by the notion that revealing your real name is a prerequisite for enjoying freedom of the press.

Yutzes with printing presses are often no better, however printed publications do have regulations to follow. What regulations does a weblog have? Aside from the rules set by their ISP, none.

The example given here of the Apple case does not involve something as important as drafting the Constitution which would affect an entire country. "Publius," "The Federal Farmer," "Cato," "Brutus," and "Cincinnatus" all were taking risks by publishing their views, so it makes sense that they would have a pen name. This blogger is not facing retaliation, he just wanted a scoop, and is protecting his sources in the event that he may gain another.

[Quartz]

Well, in some circles round the Dope, cites from blogs aren't valid, apparently.

Anyway, in 1911, Winston Churchill said, 'Although it may be very difficult to define in law what is or what is not a trade union, most people of common sense know a a trade union when they see one. It is like trying to define a rhinoceros: it is difficult enough, but if one is seen, everybody can recognize it.'

The same goes for journalists, IMO.

[Marley23]

Originally Posted by Whack-a-Mole

So, New York Times journalist does exactly the same thing Leggett does and he/she is protected?

No. There are limits to this privilege, like I said and like Brother Cadfael said. I'm sure they would not extend to this case. Vanessa Leggett was just not able to use that as a defense against submitting her notes because it was ruled she wasn't a journalist in the first place.

What makes them special deserving of special protection? That they are paid to write by a notable periodical?

As I said, it's that the free press would definitely be harmed. Let's not put too much emphasis on 'notable periodical.' Any reporter for the Nome Salmon-Tribune in Alaska is allowed to claim the same occupational privilege.

To say that ONLY people currently employed by the media or a person with a contract to write said book are the only ones deserving of claiming that privilege is wrong on many levels.

Now here we have an interesting point. I wonder if a blog, which does not have the same kind of accountability a newspaper or magazine does, really has or needs the same kind of protection. This is probably another area where the law has not yet been extended to the 'net.

I think it's been proven blogs do have a place in the flow of information today, and I think it's intriguing that the AP is standing with them. Still, I do think you need to have a definition of what a journalist is (or isn't), and if it's too vague it's not useful.

[BrotherCadfael]

Originally Posted by Marley23

Now here we have an interesting point. I wonder if a blog, which does not have the same kind of accountability a newspaper or magazine does, really has or needs the same kind of protection. This is probably another area where the law has not yet been extended to the 'net.

Recent events have shown that major newspapers and broadcast networks aren't quite as scrupulous about their work as they'd like us to think.

But in any case, the First Amendment doesn't say that it protects the "accountable" press or the "responsible" press. The fact that bloggers don't own a printing press isn't relevant either - neither does a TV station.

[rjung]

I think we need to clairfy between which rights and protections are given to (a) all citizens, and which rights and protections are given to (b) Folks Specifically Identified As Journalists(tm).

Only then can we debate whether or not bloggers should be considered journalists, and given the rights and protections afforded to (b).

[MsRobyn]

Originally Posted by BrotherCadfael

Recent events have shown that major newspapers and broadcast networks aren't quite as scrupulous about their work as they'd like us to think.

But in any case, the First Amendment doesn't say that it protects the "accountable" press or the "responsible" press. The fact that bloggers don't own a printing press isn't relevant either - neither does a TV station.

Yes, but comparing broadcast media to bloggers isn't entirely accurate. Traditional broadcasters, like TV and terrestrial radio stations, do have physical facilities and are answerable to the Federal Communications Commission for at least some of their operations, including some of their content.

Robin

[Whack-a-Mole]

Originally Posted by MsRobyn

Yes, but comparing broadcast media to bloggers isn't entirely accurate. Traditional broadcasters, like TV and terrestrial radio stations, do have physical facilities and are answerable to the Federal Communications Commission for at least some of their operations, including some of their content.

That's not an entirely fair comparison.

First off bloggers have physical facilities too...just not on the scale of a broadcaster.

Second, the FCC does not regulate the content of a news broadcast beyond setting limits as to naughty words or nudity or graphic violence.

Third, the FCC only gets into broadcasters when they actually broadcast (i.e. over the air). A cable and/or satellite only station and the FCC has little to say about anything they do. Over the air broadcasts are deemed a special case because all citizens own the airways so society gets to place limits on what is transmitted (satellite comes through the air but is scrambled). Satellite and cable television require an act from the receiver to obtain it and they pay for it. If they do not like what is there they do not have to bother and it won't bother them. The same can be said of the internet and blogs.

[Marley23]

Originally Posted by BrotherCadfael

Recent events have shown that major newspapers and broadcast networks aren't quite as scrupulous about their work as they'd like us to think.

You don't need recent events for that. Look at a really old newspaper some time. We had to invent the idea of objective reporting before FOX could kill it. Anyway I don't think this really has to do with the issue at hand.
For all their failings, newspapers and TV stations are more accountable than bloggers legally, not just for inaccurate reports but for libel and so on. The comparison of blogs to a man nailing a piece of paper to a tree may be apt, but now people around the world can read what's on the tree.

But in any case, the First Amendment doesn't say that it protects the "accountable" press or the "responsible" press. The fact that bloggers don't own a printing press isn't relevant either - neither does a TV station.

I'm not talking about the First Amendment. If this is just a First Amendment thing, I don't think the people in question have a prayer of getting beyond the agreement they signed with Apple, which they probably broke. The question is "can they avoid prosecution on the grounds that they are journalists spreading newsworthy information?"

I'm not attempting to take the position that bloggers aren't journalists. What I wanted to say is that in my opinion this issue is thornier than some people may think. I have a LiveJournal account. It's read by about two dozen people. But I do frequently comment on the news in it. I'm definitely sharing information with people. Leaving aside that I'm already a journalist, at what point do my postings become a legally protected work of journalism? The idea that I'd have to do some legwork and investigating is intriguing, but of course non-reported commentary has been a staple of the news for a long time. What about us? Are we all journalists for posting on The Straight Dope? We investigate things, provide cites, share information. Metaphorically I like the idea, but legally I'm not sure.

[Marley23]

Originally Posted by Whack-a-Mole

the FCC only gets into broadcasters when they actually broadcast (i.e. over the air). A cable and/or satellite only station and the FCC has little to say about anything they do. Over the air broadcasts are deemed a special case because all citizens own the airways so society gets to place limits on what is transmitted (satellite comes through the air but is scrambled). Satellite and cable television require an act from the receiver to obtain it and they pay for it. If they do not like what is there they do not have to bother and it won't bother them. The same can be said of the internet and blogs.

Technically the stations all have charters that can be revoked if they're not serving the public.



Sorry, the thought of that ever happening made me laugh. Anyway, even though they are subscription-based, newspapers and magazine are still responsible for libelous statements. I don't know that blogs are. That probably has not been defined yet.

[zagloba]

Originally Posted by Marley23

I'm not talking about the First Amendment. If this is just a First Amendment thing, I don't think the people in question have a prayer of getting beyond the agreement they signed with Apple, which they probably broke. The question is "can they avoid prosecution on the grounds that they are journalists spreading newsworthy information?"

Correct me if I'm wrong, but my understanding is that the bloggers do not have an agreement with Apple. Rather, Apple is attempting to force the bloggers to help Apple find out which of their employees violated their NDA. What these employees are alleged to have committed is a tort, not a crime. In any case, the bloggers are not subject to prosecution, but only to court order (and possibly to penalties for comtempt of court).

[Harborwolf]

The problem with the blogs as journalism is that anyone with a computer, internet connection, and some free time, can have one. They have no editors, no fact checkers, no proof readers, and really no standards. When they want to go through the same processes as a normal reporter, then they can have any - and it sounds like there aren't a whole lot of them - protections afforded by law.

And to claim that because you think the media is shifty, then bloggers count as journalists, is silly.

[Zabali_Clawbane]

If bloggers were held to the same standards as journalists, what would that mean for those who lie and slander others? Would they be liable to harsher penalties because they are considered journalists? How would the person who had been slandered go about prosecuting said "journalist"?

[Whack-a-Mole]

Originally Posted by Marley23

Anyway, even though they are subscription-based, newspapers and magazine are still responsible for libelous statements. I don't know that blogs are. That probably has not been defined yet.

Why wouldn't a blogger be responsible for libelous statements? Libel is libel. Admittedly IANAL but I would be shocked to find that there is a libel law for established news media and another for Joe Blow scribbling things on a paper and gluing it to a street light.

The difference is it is probably likely the blogger is not worth suing. Going after an established media outlet you have deeper pockets to tap into to recover damages if libel is proved. Of what use suing some person with $2,000 in savings if it costs you $50,000 to litigate the case? As near as I can tell such people generally get a nasty-gram from an attorney threatening legal action if they do not remove whatever it is they deem offensive. The blogger can then decide to pay an attorney to fight back or remove the bad bits. If the blogger only has $2,000 it isn't hard to bet on what they will probably decide to do.

So, it is for the above reasons that a media outlet has editors and fact checkers and written standards to avoid trouble. First, they can afford it and second they stand to lose more if they mess up. Presumably a media source also cares about their reputation and (generally but perhaps not always) give the appearance of impartiality. A blogger has less at stake and while some may care about their rep it is easier to see how many may not be so scrupulous.

FWIW it is my impression libel is pretty hard to prove. Again, IANAL but in the past have spoken to my dad about it (and he is a lawyer). He told me it is the difficulty of proving libel that allows rags like The National Enquirer to do what they do. Yes, they have been successfully sued for libel but they win far more often than they lose those cases. IIRC it is not enough to just print something false. You have to know it is false when you print it OR show a callous disregard for the truth. Apparently this is a pretty difficult thing to prove in court. That said it'd be good if a real lawyer who knows better chimes in on this point...things may have changed since I talked to my dad about it 10-15 years ago.

[MsRobyn]

Anyone can be sued for defamation, journalist or private citizen. Journalists are more in a position to have their work disseminated to a greater number of citizens, and to be in a higher position of trust, and therefore, more likely to be sued.

Robin

[MsRobyn]

Originally Posted by Whack-a-Mole

FWIW it is my impression libel is pretty hard to prove. Again, IANAL but in the past have spoken to my dad about it (and he is a lawyer). He told me it is the difficulty of proving libel that allows rags like The National Enquirer to do what they do. Yes, they have been successfully sued for libel but they win far more often than they lose those cases. IIRC it is not enough to just print something false. You have to know it is false when you print it OR show a callous disregard for the truth. Apparently this is a pretty difficult thing to prove in court. That said it'd be good if a real lawyer who knows better chimes in on this point...things may have changed since I talked to my dad about it 10-15 years ago.

Sorry, I was working on a project and didn't see this part of your post.

Part of the reason newspapers like the Enquirer get away with it is because much of they print is true, or at least the germ of it is true, but because of the way the story is framed, the truth is distorted, and the facts thus are used to support something entirely different.

I'll give you an example.

Last year, one of the tabloids published a story on Kobe Bryant's accuser in which a friend quoted her as saying that she wanted to sleep with a star and get a lot of money for it. That formed the basis for the story. What was glossed over was the fact that his accuser said that when she was a teenager, years before the alleged assault. Whether she still feels that way, or whether that was in the back of her mind that night is irrelevant. She said what she said, and that makes the story "true" from a legal perspective.

IANAL, but this is covered in several of my journalism courses.

Robin

[Marley23]

Originally Posted by Whack-a-Mole

Why wouldn't a blogger be responsible for libelous statements?

Because I don't think there's any precedent yet. Do you see what I mean?

FWIW it is my impression libel is pretty hard to prove.

Yes, it is. The rest of your post is pretty close to correct. There's an extra hurdle for public figures called "actual malice," which means they have to prove exactly that. And yeah, it's very hard to show what someone else's motivations were for printing or writing something.

[Steve MB]

Originally Posted by Whack-a-Mole

FWIW it is my impression libel is pretty hard to prove. Again, IANAL but in the past have spoken to my dad about it (and he is a lawyer). He told me it is the difficulty of proving libel that allows rags like The National Enquirer to do what they do. Yes, they have been successfully sued for libel but they win far more often than they lose those cases. IIRC it is not enough to just print something false. You have to know it is false when you print it OR show a callous disregard for the truth. Apparently this is a pretty difficult thing to prove in court. That said it'd be good if a real lawyer who knows better chimes in on this point...things may have changed since I talked to my dad about it 10-15 years ago.

Also, the standard for libel against public figures is higher than that for libel against Joe Blow. Tabloid journalists are, obviously, concerned only with the former.

[RTFirefly]

Originally Posted by miamouse

Yutzes with printing presses are often no better, however printed publications do have regulations to follow. What regulations does a weblog have? Aside from the rules set by their ISP, none.

Yutzes with printing presses don't have any regs to follow regarding what they print. First Amendment, and all that.

The example given here of the Apple case does not involve something as important as drafting the Constitution which would affect an entire country. "Publius," "The Federal Farmer," "Cato," "Brutus," and "Cincinnatus" all were taking risks by publishing their views, so it makes sense that they would have a pen name. This blogger is not facing retaliation, he just wanted a scoop, and is protecting his sources in the event that he may gain another.

But that's exactly the situation everyday reporters are in: they don't face retribution, they want a scoop, and if they don't protect their sources, the next confidential source won't talk to them.

Originally Posted by Harborwolf

The problem with the blogs as journalism is that anyone with a computer, internet connection, and some free time, can have one. They have no editors, no fact checkers, no proof readers, and really no standards. When they want to go through the same processes as a normal reporter, then they can have any - and it sounds like there aren't a whole lot of them - protections afforded by law.

Do you read op-ed columns? Do you watch Hannity or O'Reilly? They have no editors and no fact checkers, either, AFAICT. The op-ed writers probably do have proofreaders, but the established ones (which is most of them; they seem to have lifetime tenure) don't seem to have to have anyone review their columns.

The only difference between Broder and Will, and Atrios and Instapundit, is that Broder and Will keep other voices off the limited space of the op-ed page simply by continuing to be there. But there's an infinitude of Internet for new bloggers. Bloggers have broken the monopoly; they've demonstrated that there are a lot of writers out there who are far better suited for being in the commentariat than the op-ed writers and Sunday gasbags who thought they were the privileged few that everyone had to listen to. I'd rather read Kevin Drum than any op-ed writer I've ever read except for maybe Krugman, and Kevin's not even my favorite blogger; that would be Brad DeLong.

Originally Posted by Quartz

Well, in some circles round the Dope, cites from blogs aren't valid, apparently.

They shouldn't be, except to the extent that the blog has a reputation for accuracy.

FWIW, very few blogs do original reporting; accordingly, when one is citing facts one sees in a blog, the proper form is to cite the source the blog cited - after checking it to make sure it really said what the blogger said it did.

Anyway, in 1911, Winston Churchill said, 'Although it may be very difficult to define in law what is or what is not a trade union, most people of common sense know a a trade union when they see one. It is like trying to define a rhinoceros: it is difficult enough, but if one is seen, everybody can recognize it.'

The same goes for journalists, IMO.

Here's the problem: I can identify what reporters do, pretty well: they go out, interview people, dig through records, and publish the results.

But I can't recognize a difference between what those journalists do who are really part of the commentariat (rather than reporters), and what political radio show hosts (e.g. Limbaugh) do, or what bloggers do.

And even with reporters - now that so many public records that used to involve rummaging through courthouse files to access are now online, anyone can do the 'looking through records' part. We posters do it all the time here - digging through the President's budget, or Bureau of Labor Statistics records, or the Social Security Trustees' report, or whatever. The only difference between posters/bloggers and reporters, is that reporters for actual newspapers and broadcast outlets have a much better chance of getting their calls returned, if their story depends on a response from a government or corporate official.

There's still a difference there - I'm more than willing to admit that Dana Milbank of the WaPo is a reporter in ways that I never will be. But it's a diminishing difference, and may not continue indefinitely. And in the case of the commentariat, there's no difference at all. Atrios is just as qualified as David Broder, and twenty times as interesting. And the same goes for Instapundit and George Will.

Originally Posted by Marley23

I wonder if a blog, which does not have the same kind of accountability a newspaper or magazine does, really has or needs the same kind of protection.

What accountability is that? None other than the libel laws, which apply to everyone.

And while newspapers have deep pockets (hence are more tempting targets), they also have deep pockets (which means they can hire good lawyers). Ever heard of SLAPPs, Strategic Lawsuits Against Public Participation?

[Harborwolf]

RTFirefly, how much journalist style protection does Bill O'Reilly enjoy? How about Hannity and Colmes? When did op-ed columnists become become reporters?

[RTFirefly]

Originally Posted by Harborwolf

RTFirefly, how much journalist style protection does Bill O'Reilly enjoy? How about Hannity and Colmes? When did op-ed columnists become become reporters?

Who said they were reporters? I used the broader term journalists which does, AFAICT, encompass them.

I don't know whether O'Reilly's or Hannity's "journalist style protection" has ever been measured. But the question is, does the fact that they're on TV somehow entitle them to more protection than bloggers get, given that they're less responsible than a lot of bloggers I know of? I can't see that it would.

And why hasn't Bob Novak been publicly subpoenaed about the Valerie Plame leak? He's an op-ed columnist, and only marginally a reporter. But he's getting the kid-glove treatment as if he's entitled to some sort of special handling to protect his sources.

[Harborwolf]

So the argument is now "Well, the waters already muddy. Why not throw some more crap in there?"

Just because the line between journalist and editorialist is smeared all to hell and back doesn't mean we should make it any worse.

[Zabali_Clawbane]

Here's a thought that occurred to me. When a journalist slanders a person, the company that "publishes" the journalist can also be sued for defamation. So, if Bloggers are considered journalists, does this mean the blog host site can be sued for defamation? If that's the case, there will be plenty of blog sites closing down after the trend of suing bloggers and their hosts as though they were journalists begins.

[Whack-a-Mole]

Originally Posted by Zabali_Clawbane

Here's a thought that occurred to me. When a journalist slanders a person, the company that "publishes" the journalist can also be sued for defamation. So, if Bloggers are considered journalists, does this mean the blog host site can be sued for defamation? If that's the case, there will be plenty of blog sites closing down after the trend of suing bloggers and their hosts as though they were journalists begins.

In general I'd say no, the hosting site cannot be sued for defamation any more than you could sue Dell for building the computer the guy used or Microsoft for providing the software the blogger used.

That said I seem to recall a case awhile back where a New York investment firm sued an ISP for defamatory remarks someone (not the ISP) made about the investment firm. In this case, though, the ISP had a policy of "watching" what was written via its service. Their reason was an attempt to be a "good corporate citizen" and stop illegal things like kiddie porn passing through their system. Because they had taken some responsibility for this that opened them up to a lawsuit from the investment firm. Needless to say all ISPs now do not watch what goes through their system anymore than the phone company listens to your phone calls so they can wash their hands of what happens on there.

[Whack-a-Mole]

Originally Posted by Zabali_Clawbane

So, if Bloggers are considered journalists, does this mean the blog host site can be sued for defamation?

Here's a better answer to your question...

In the 1997 US Court of Appeal case of Zeran v. America OnLine, Inc., the plaintiff sued the defendant internet service provider (“ISP”) for unreasonable delay in removing defamatory messages posted by an unidentified third party, refusing to post retractions, and failing to screen for similar postings thereafter. The Court held that the Communications Decency Act barred such claims by immunizing commercial interactive computer service providers from liability for defamatory information posted by third parties. In reaching its decision the Court noted the following [at p. 333]:

If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement - from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information. Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the internet context.

SOURCE: http://www.adidem.org/articles/DS5.html