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Judge Says Blogs Not Legitimate News Source, No Shield Protections
Techdirt ^ | 07/07/09 | Various

Posted on 07/07/2009 6:49:41 AM PDT by Kieri

from the seems-to-leave-a-lot-of-leeway dept

Back in May we wrote about a lawsuit questioning whether or not a blogger could use journalism shield laws to protect a source who sent her info she used for a blog post. The company the info was about is suing her for slander (which is odd, since slander is usually spoken, while libel is written). The woman, Shellee Hale tried to claim that she was protected under New Jersey's shield law, which allows a journalist to protect sources. In writing about this case originally, we pointed out that the judge in question clearly did not know much about the internet, and via his questions seemed positively perplexed that anyone would blog at all: "Why would a guy put all this stuff on a blog? Does he have nothing better to do?"

Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has "no connection to any legitimate news publication." This is troubling for a variety of reasons. First, it leaves open entirely to interpretation what exactly is a "legitimate news publication." The judge seems to think it only applies to old school media, saying: "Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person." Sure, but that doesn't mean that an individual who posts something in the pursuit of reporting isn't media as well. It looks like Hale will appeal this decision, and hopefully other courts will recognize that you don't have to work for a big media organization to be a reporter any more.


TOPICS: Culture/Society; Government; News/Current Events; Politics/Elections
KEYWORDS: blogs; lawsuits; newmedia; news; palin; privacy; ruling; weblogs
Hmm, sounds like Sarah can make hay against the blogger who's been abusing the lawsuit departments in Alaska.
1 posted on 07/07/2009 6:49:41 AM PDT by Kieri
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To: Kieri
The First Amendment only applies to "journalists," don't you know?
2 posted on 07/07/2009 6:52:03 AM PDT by E. Pluribus Unum (Islam is a religion of peace, and Muslims reserve the right to kill anyone who says otherwise.)
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To: Kieri

This clearly cuts both ways. Huff-poop and Daily Cuz might not like being exposed to the light. It’s not like the light of “screwtiny” hasn’t been shined on every poster to the right of Mao.


3 posted on 07/07/2009 6:53:53 AM PDT by Steamburg ( Your wallet speaks the only language most politicians understand.)
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To: Kieri

So now judges have to define what is a news source and what is not a news source?

Does this judge even know of television yet?


4 posted on 07/07/2009 6:54:33 AM PDT by GeronL ( Patriotic Insurrectionist is no longer a contradiction in terms!)
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To: E. Pluribus Unum

“Legitimate” = “government approved.” This decision reeks of circular argument.

New Jersey: come for the taxes, stay for the corruption.


5 posted on 07/07/2009 6:54:59 AM PDT by coloradan (The US has become a banana republic, except without the bananas - or the republic.)
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To: Kieri

Yeah!

Got that, Shannyn Moore? You’ll be the first, so waddle your fat azz up, bend over and take one for your team.

It’s one thing to criticize Sarah Palin’s policies and decisions, but you’re asking for trouble when you perpetuate false rumors. The First Amendment doesn’t cover slander, so the game’s up for you and your ilk, b!tch.


6 posted on 07/07/2009 6:55:31 AM PDT by ScottinVA (Impeach President Soros!!!)
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To: Kieri
Hmm, sounds like Sarah can make hay against the blogger who's been abusing the lawsuit departments in Alaska.

I'm leery of this decision. Sure, this Sarah-harrassing punk deserves a hard time. But, an all purpose lowering of the suit bar can work big-time against all forms of commentary, including conservative commentary. I think we would be better served if Sarah found a way to go after some of the formal news organizations that spread the unfounded crap they spewed about her, or if there were punishments for the obviously frivolous ethics lawsuits.

7 posted on 07/07/2009 6:55:37 AM PDT by Pearls Before Swine (Is /sarc really necessary?)
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To: Kieri

Shannyn Moore is the lib with the radio show who is causing Sarah a bit of a headache in Alaska. She may not be “THE” blogger but she is a very visible antagonist to Sarah.


8 posted on 07/07/2009 6:56:22 AM PDT by austinaero ((More Bark, Less Wag))
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To: Kieri

Simple solution: bloggers should join journalist associations.


9 posted on 07/07/2009 6:56:54 AM PDT by FreepShop1
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To: Kieri

Shield laws are crap anyway.


10 posted on 07/07/2009 7:01:01 AM PDT by ImJustAnotherOkie
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To: Kieri
If I print up a dozen pages and annoy people with it downtown once a week, does that make me a legitimate journalist like the free weekly newspapers?
11 posted on 07/07/2009 7:01:19 AM PDT by KarlInOhio (Fannie Mae, Freddie Mac, AIG, Chrysler and GM are what Marx meant by the means of production.)
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To: Kieri
So what happens when a "journalists" posts on a blog? Is he/she illigitimate for that moment then goes back to being legit? Similarly, what about when a blogger is published in a "legitimate news source", is the blogger immediately and temporarily legit?


12 posted on 07/07/2009 7:06:06 AM PDT by ProfoundMan (RightyPics.com)
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To: Kieri

>Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has “no connection to any legitimate news publication.”

Now school papers don’t have protection via shield-laws, nor do self published papers.

Yep, the 1st amendment’s freedom of the press is clearly restricted to only those papers legitimized by the government. [/sarc]


13 posted on 07/07/2009 7:08:05 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: GeronL

Shield laws like this are very specific and probably unconstitutional, since they provide an enhanced level of freedom of speech protection to certain groups.

It will take some time for case law to determine where blogs fit into journalism and publication.

How is a blog any different than a magazine or newspaper? There have been self-published newspapers since revolutionary days.

Libel is still libel, whether it’s published in the New York Times or Bubba’s Blog. Quality journalism is the same, as well.


14 posted on 07/07/2009 7:12:23 AM PDT by MediaMole
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To: Kieri
First, it leaves open entirely to interpretation what exactly is a "legitimate news publication."

That should make for interesting legal case law.

15 posted on 07/07/2009 7:14:11 AM PDT by Tanniker Smith (Obi-Wan Palin: Strike her down and she shall become more powerful than you could possibly imagine.)
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To: Kieri

Is there any justification for allowing journalists of any kind to conceal their sources from a court? I think not.


16 posted on 07/07/2009 7:14:42 AM PDT by Tax Government (Sarah NOW.)
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To: E. Pluribus Unum
It shouldn't matter if it is a blogger, journalist, or "Joe on the street". Slander, libel, and out right lying were not intended to be protected speech. If an individual or organization does not want to reveal their source that is OK. They can take full responsibility for writing defamatory information.
17 posted on 07/07/2009 7:16:43 AM PDT by armymarinedad (Support, v., To take the side of; to uphold or help.)
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To: ProfoundMan

I see you have posted pictures from the other side of the obama family tree. Interesting pair.


18 posted on 07/07/2009 7:19:12 AM PDT by Neoliberalnot ((Freedom's Precious Metals: Gold, Silver and Lead))
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To: coloradan

>>>New Jersey: come for the taxes, stay for the corruption.

I may have to steal that :)


19 posted on 07/07/2009 7:26:54 AM PDT by Calpernia (DefendOurFreedoms.Org)
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To: Tax Government

Is there any justification for forcing journalists or anyone else to reveal their sources or anything else they don’t care to reveal, ever? Not in a free country, but perhaps in Russia or modern America.

[A few of us remember when it was free—and it was wonderful!]

Hank


20 posted on 07/07/2009 7:34:52 AM PDT by Hank Kerchief
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To: E. Pluribus Unum
Libel and Slander online MUST STOP. This is not about Free Speech when someone lies and smears another person or persons.

There is NOT any sense in the Bloggers online attacking people without facts. Typical Moonbats start lies until people believe the lie. Enough is enough...

21 posted on 07/07/2009 7:46:49 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Kieri
Hmm, sounds like Sarah can make hay against the blogger who's been abusing the lawsuit departments in Alaska.

It cuts both ways. Would you like FR to have "hay" made against it for promoting criticism of the left?

This decision needs to be appealed and overturned.
22 posted on 07/07/2009 7:49:28 AM PDT by mysterio
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To: Kieri
Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has "no connection to any legitimate news publication." This is troubling for a variety of reasons. First, it leaves open entirely to interpretation what exactly is a "legitimate news publication." The judge seems to think it only applies to old school media, saying: "Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person." Sure, but that doesn't mean that an individual who posts something in the pursuit of reporting isn't media as well. It looks like Hale will appeal this decision, and hopefully other courts will recognize that you don't have to work for a big media organization to be a reporter any more.

The author maistakenly believes that the judge has no clue in this case. He apparently doesn't understand that the judge is concerned about real and significant legal issues. The key issue comes straight from the First Amendment: "Congress shall make no law ... abridging the freedom of speech, or of the press."

The First Amendment does not mean that laws against slander or libel are unconstitutional: "freedom of speech" was not intended as an unbounded right; nor was "the press" exempted from constraints against libel or slander.

However, the First Amendment does identify "the press" as being explicitly protected in some sense. The obvious legal question is the extent to which people or organizations can claim to be "the press."

Your neighborhood gossip is a purveyor of "news," but it's not likely that anybody would seriously consider her to be part of "the press" in any legal sense of the term.

By the same token, an organization whose stated purpose and efforts are bent toward the dissemination of information (e.g., National Review Online) is clearly covered as part of "the press."

The legal issue here is whether this particular blogger falls into the "gossip" category, or is "a legitimate news source." There is a line somewhere, and this case has brought the issue forward. It's a serious and significant point.

The distinction between slander and libel is also crucial to this point. "Slander" is something that a gossip might commit. "Libel" is something that "the press" commits. The lawyer is suing on the basis that this blogger is a gossip.

23 posted on 07/07/2009 8:10:40 AM PDT by r9etb
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To: GeronL
So now judges have to define what is a news source and what is not a news source? Does this judge even know of television yet?

I wouldn't be so dismissive of the judge if I were you. Take a moment and try to define exactly what the First Amendment means when refers to "the press." You'll quickly discover that it is not so easy after all.

Part of what this judge had to do, was decide whether or not this blogger could legitimately claim to be "the press;" or if, as argued by the other side, she was merely a gossip.

And, unlike the author(s) of this poorly-reasoned opinion piece, the judge had to decide, one way or the other, based on actual legal grounds. You should probably read his actual decision before pooh-poohing it.

24 posted on 07/07/2009 8:19:46 AM PDT by r9etb
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To: Calpernia

It isn’t mine, there was a competition for what to put on their license plates and probably about a million people suggested that or a minor variant.


25 posted on 07/07/2009 8:30:34 AM PDT by coloradan (The US has become a banana republic, except without the bananas - or the republic.)
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To: r9etb
“However, the First Amendment does identify ‘the press’ as being explicitly protected in some sense. The obvious legal question is the extent to which people or organizations can claim to be ‘the press.’

“Your neighborhood gossip is a purveyor of ‘news,’ but it's not likely that anybody would seriously consider her to be part of ‘the press’ in any legal sense of the term.”


You are defining “the press” as an institution, e.g. the Newspaper/magazine industry — or the news media. I don't believe the First Amendment is addressed to any such class specifically.

A Gospel tract society, a church, synagogue, mosque, or any religious persons, for example(s) can purchase a “press” and produce and distribute literature propagating what it believes to be the truth, and Congress can not make a law abridging that right, because that is included in the concept of “the press.” The First

Amendment is not at all specifically dealing with “news” sources.

Any individual can purchase a Risograph or a Xerox machine, interface his computer, and run off thousands of copies of literature in an effort to be elected to the city council, and Congress can make no law to abridge that right, because that is also included in the concept “the press.”

Anyone can start-up a local publishing business to, say, reprint out-of-print books that are now in the public domain, on any subject anyone might be interested in. Congress can make no law to abridge that right, because that also is included in the concept of “the press.”

I can write, publish, and distribute Creationist, anti-Darwinian, anti-Humanist Christian school and home school curriculum, and Congress cannot make a law to abridge my right to do so, because that is also included in the concept of “the press.”

To limit the concept of “the press” to news sources is absolutely absurd.

26 posted on 07/07/2009 8:52:02 AM PDT by John Leland 1789
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To: Kieri

Blogs need to form a “professional” news and commentary union with no rules of membership but laying out the protections of the first amendment given to the corporate media. It would be wise for conservatives to do this before liberals because liberals will make rules to exclude conservative bloggers from the professional union.


27 posted on 07/07/2009 8:59:34 AM PDT by SaraJohnson
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To: Hank Kerchief

If one believes that courts serve a legitimate purpose, and that under the constitution they are supposed to be triers of fact, then one ought to support the idea that courts may compel testimany. There are exclusions, of course, such as testimony against self or against one’s spouse.


28 posted on 07/07/2009 9:20:18 AM PDT by Tax Government (Sarah NOW.)
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To: John Leland 1789
You are defining “the press” as an institution, e.g. the Newspaper/magazine industry — or the news media. I don't believe the First Amendment is addressed to any such class specifically.

The key words there are "you don't believe." "The press" is not clearly defined in the First Amendment. The term must be defined in cases like this one, which hinge directly on the woman's claim to be covered by that designation.

The principles of "liberty of the press" were defined by the likes of David Hume:

If the passion of the ministers lie toward peace, our political writers breathe nothing but war and devastation, and represent the specific conduct of the government as mean and pusillanimous....

As long, therefore, as the republican part of our government can maintain itself against the monarchical, it will naturally be careful to keep the press open, as of importance to its own preservation.

Hume's sense of "the press" is clearly an institutional one; we have a similar sense of the term when we acknowledge the media as the "fourth estate." Neither Hume nor the Founders considered "freedom of the press" to be license to say whatever they pleased, of course: the media are properly subject to being sued for libel and/or slander.

The First Amendment is not at all specifically dealing with “news” sources.

True -- indeed, as per Hume, the original intent was to protect political writers' right to oppose the government, as opposed to "news reporting."

As you properly pointed out, if we take the Constitution literally on the point, "the press" could only refer to printed material -- which, at the time, was the only medium available other than political speech (which is also and separately covered by the First Amendment). We don't take the term literally anymore, of course -- there are too many other media which satisfy the spirit of what Hume, et al. were talking about.

But at the same time, that very reliance of the spirit over the letter of the clause, forces judges to rule on what is, and is not, covered under the "freedom of the press" clause.

The underlying legal question in this case is straightforward: In a legal sense, what distinguishes "the press" from a gossip? There is a difference; but what are the specific criteria by which one would make the distinction?

It's not the judge's fault we're discussing "news sources" in this particular case. The defendant seems to be claiming that she is a "news source," and as such is entitled to protection of her sources on the same basis as the New York Times.

The judge, then, is required to rule on whether or not she is truly a "news source" in the First Amendment sense of the term -- or if she's merely a gossip, as the plaintiffs claim.

29 posted on 07/07/2009 10:09:03 AM PDT by r9etb
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To: Tax Government

“If one believes that courts serve a legitimate purpose, and that under the constitution they are supposed to be triers of fact, then one ought to support the idea that courts may compel testimany ...”

The purpose of the Constitution was to establish a system that would ensure the rights to the people The Declaration spelled out and the revolutionary war was fought over, namely: life, liberty, and the pursuit of happiness.

When an innocent man is compelled to do something against his will, he has lost his liberty. It cannot be right to violate an individual’s liberty in the name of liberty.

Bah!

Hank


30 posted on 07/07/2009 10:56:17 AM PDT by Hank Kerchief
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To: r9etb

“As long, therefore, as the republican part of our government can maintain itself against the monarchical, it will naturally be careful to keep the press open, as of importance to its own preservation.” -—David Hume


Hume using it in this way does not define it re: the First Amendment.

I wasn’t arguing with the judge in the case, but with your seeming narrow usage and definition in your post.

If that narrowness were to catch on, it would leave many of us who do a lot of printing and distributing (outside of news and politics) in a potential vulnerable situation with regard to First amendment protections.


31 posted on 07/07/2009 4:26:48 PM PDT by John Leland 1789
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To: r9etb

“The key words there are ‘you don’t believe.’ ‘The press’ is not clearly defined in the First Amendment. The term must be defined in cases like this one, which hinge directly on the woman’s claim to be covered by that designation.”


Exactly. One forms beliefs from reading words. There is nothing wrong with any one stating that they believe, or don’t believe something.

Every common citizen should be able to read the Constitution, and BELIEVE just what it says, without having a bunch of self-serving, money or fame-seeking lawyers twist those words, case-by-case, just to win their case.

Belief = TRUST. We have institutions of TRUST. We have TRUST Laws. That means someone must be able to soundly BELIEVE the words or policies of another.

I understand why nowadays these words, “I believe,” or “I don’t believe” seem to prick people so, is because they don’t have a sound belief system of the heart . . . that which was possessed by so many of the very men who penned the Constitution. And those drafters and signers who may not have had that belief system at least had deep respect for those who did. —— That belief system, by the way, was Biblicist Christianity.

And that is why I cherish and use, “I believe,” or “I don’t believe.”

Judges do the same thing in their decisions without using the words, unless you believe that no judge ever made a ruling from his own beliefe system.


32 posted on 07/07/2009 4:41:42 PM PDT by John Leland 1789
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To: John Leland 1789
Hume using it in this way does not define it re: the First Amendment.

True. However, Hamilton deals with it similarly (though less clearly) in Federalist 84; and besides, Hume's political philosophy was a major influence on the men who wrote the Constitution. The essential message is unchanged: "the press" is to be considered as "an institution", rather than something that applies to whatever individuals may care to write.

The distinction is very important: "the press," to the Founders, was no one individual or group; rather, it was seen as an almost abstract institution, the purpose of which was to be able to publish and disseminate contrary political views. As Hume pointed out, it was this ability to publish dissent that maintained the necessary balance between monarchy and representative government; and the same would apply to our own republican form of government. Precisely who comprises "the press" is far less important than the fact that "the press" exists at all.

An individual may be considered part of "the press" in a First Amendment case; but that does not mean that an individual must be considered that way, just because they claim it. One certainly cannot make the claim simply in order to evade the legal consequences of being accused of slander. That's exactly what this judge in this case was being asked to decide.

33 posted on 07/07/2009 5:42:55 PM PDT by r9etb
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To: John Leland 1789
And that is why I cherish and use, “I believe,” or “I don’t believe.”

That's fine. But the judge is held to higher standards than his own personal beliefs: he's got to evaluate the claim based on actual legal arguments. That's as it should be. What you, personally, believe does not have the force of law. What the judge decides, does.

Some on this thread are deriding the judge for dealing with such a supposedly simple fact. The point is that it's not simple a simple thing in the first place, and in any case his decision has got to be grounded in law.

34 posted on 07/07/2009 5:46:59 PM PDT by r9etb
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To: r9etb

“That’s fine. But the judge is held to higher standards than his own personal beliefs: he’s got to evaluate the claim based on actual legal arguments. That’s as it should be. What you, personally, believe does not have the force of law. What the judge decides, does. “

You are kidding yourself if you think that TODAY judges don’t use personal belief -— and many of them have their own personal or political agendas. Many of them listen to, and make judgments by, political correctness.


35 posted on 07/08/2009 2:26:50 AM PDT by John Leland 1789
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To: John Leland 1789
You are kidding yourself if you think that TODAY judges don’t use personal belief

Oh, I quite agree that this happens all too often. But it doesn't happen all the time, or even a lot of the time. Mostly, judges will actually rule based on the legal arguments presented to them by the opposing lawyers.

I've recently had the opportunity to view this process at close quarters, in the context of a church property-related lawsuit, in which I ended up reading dozens of rulings and hundreds of lawyers' briefings.

I found myself fascinated by the process of how the opposing lawyers marshalled their legal arguments; and it was gratifying to see the judge base his decisions on those, as opposed to the emotional appeals made by the other side. In the numerous other decisions I read, rulings based on legal arguments were uniformly the standard. Other rulings I've read have been the same.

In this particular case, I see no reason why the judge would be motivated to base his decision on personal beliefs instead of legal arguments. I'd have to look at the actual decision itself to be sure ... but I am willing to bet that the judge offered a firm legal basis for what he did.

36 posted on 07/08/2009 8:03:13 AM PDT by r9etb
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