December 6th, 2011

Are bloggers members of the media? US District judge in Portland says no… but may have missed something


Are bloggers members of the media? US District judge in Portland says no… but may have missed something

Now, I’m used to having the “journalist” vs “blogger” argument. I’m not a journalist. I’m a blogger. I’m not terribly objective. And a great deal of Silicon Florist is my hemming and hawing about all of the awesome things going on in Portland. I mean, let’s be honest. At best, Silicon Florist is like People magazine or TMZ.

But now the argument has taken a bit of different turn. Thanks to a ruling against a blogger in a US District Court. Right here in Portland, Oregon.

Now that headline is a little misleading. The judgement isn’t about whether she’s a journalist or not. It’s an argument that blogs aren’t media. And that doesn’t really make any sense.

Because while I might not be a journalist, I still think of Silicon Florist as a media property. And I think most bloggers have the same feeling. But according to U.S. District Judge Marco A. Hernandez, a blogger is only a member of the media he or 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.

That’s an important distinction. And a judgement as to whether the protections of old world media—our revered Fourth Estate—are available to bloggers. For Crystal Cox, they aren’t. To the tune of $2.5 million.

Now, no matter what you think about the topics of Crystal’s blog, this affects everyone with a blog. It affects people who share news on Twitter. It affects anyone who publishes publicly on Google+. Because it’s an awful slippery slope.

Some folks on Hacker News are digging into the issue. And some of those folks—wtallis in particular—have discovered that the judge has missed part of the language in the law. To wit, Media Persons As Witnesses, Section 44.510 of the Oregon Revised Statutes [emphasis is mine]:

(2) “Medium of communication” has its ordinary meaning and includes, but is 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. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of the official’s or employee’s governmental function, or any political publication subject to ORS 260.532, is not included within the meaning of “medium of communication.”

So, according to the witness statutes, a blogger may be protected. But according to the judge, they’re not.

Not only am I not a journalist, but I’m also not a lawyer. So I’ve no idea. But it’s an interesting distinction. Maybe you can head over to get lawyer and blogger Jack Bogdanski’s take on it.

Whatever the case, this is going to be interesting to see what happens with this. In the meantime, I’ll just keep blogging.

[UPDATE]

From the comments:

[UPDATE 2]

The complete opinion:
Crystal Cox Opinion

UPDATE 3

The Oregonian presents their take on the case.

A federal jury has ruled an “investigative blogger” defamed a central Oregon attorney in a case that raises questions about press protections and the nature of the press itself in the Internet age.

(Hat tip @ahockley)

(Image courtesy sqrpix. Used under Creative Commons.)

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10 Responses to “Are bloggers members of the media? US District judge in Portland says no… but may have missed something”

  1. The judge doesn’t actually miss the “not limited to” language, he references it. But he neglects to mention that it’s in conjunction with “its ordinary meaning”. Those two phrases together are the sort of thing put in the law precisely because the world changes.

    The reality is Hernandez could have reached the same end result — liable for defamation damages — without ever getting the Oregon shield law wrong like this. As he says in his ruling, the shield law doesn’t apply to civil defamation lawsuits anyway.

  2. Will Radik says:

    money and/or many readers who might stick up for you = journalist!

    I was just listening to something interesting on the Skeptic’s Guide to the Universe about a quack “Cancer treatment” facility called the Burzynski Clinic bullying a blogger. Fortunately, this blogger had friends with access to lawyers and was also pretty smart.

    Ep # 333 http://www.theskepticsguide.org/archive/podcast.aspx?mid=1

  3. Aaron says:

    Here’s an analysis from the guy who wrote Washington’s shield law; he comes to the conclusion that Washington’s law would protect a blogger: http://blogs.seattleweekly.com/dailyweekly/2011/12/unlike_oregon_bloggers_are_jou.php

  4. Cory Roush says:

    So, I’ll play devil’s advocate (and I’m probably parroting someone else’s thoughts, I haven’t had a chance to explore this in-depth): if just starting a blog is enough to put you under the protection of the shield law, isn’t everyone capable of becoming a “blogger”, then? Considering it’s incredibly easy to start a blog, even if you and your grandma are the only ones who read it, I would think that it opens the doors for a lot of loopholes. It gets even messier if you start to consider things like Facebook, Twitter, and Tumblr as a medium similar to blogging… 800 million people suddenly just came under the protection of the shield law, in that case.

    So basically, how do you differentiate between a blogger, like yourself and many others with large, dedicated audiences, and a “blogger” with a simple Blogger profile?

  5. Bryan says:

    B!X,
    I don’t quite buy your argument. In legal interpretation of statues, a phrase like “including but not limited to” is read to include other things of the same type listed. It is by no means clear that a solo blogger is like an entity that publishes a newspaper or magazine or produces a news program broadcast over the public airwaves.
    You’re right that the world changes, but your complaint is better directed to the ones who write the laws than to the ones who are tasked with its interpretation.

  6. Rick Turoczy says:

    FYI I’ll keep updating the post as more people publish. Including but not limited to bloggers, journalists, and other media ;)

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