Bloggers fight for status as journalists

With buzz about a federal shield law, bloggers want protection, too
Cover Story
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6

KC Johnson

When a sheriff’s deputy walked up to Robert David “KC” Johnson’s home in Maine, the history professor and blogger knew it was “not a good thing.”

The deputy served Johnson, who wrote a blog and co-authored a book about the 2006 Duke University lacrosse rape scandal, his first subpoena. Duke lawyers wanted all correspondence that the blogger had with anyone affiliated with the school and the lacrosse case.

“The subpoena would have covered hundreds of sources for the blog. Somewhere between 85 and 90 percent of posts were covered,” Johnson said. “Essentially, what they wanted were my sources for more than 1,000 posts for over 4.5 years.”

Johnson — panicked and frightened — asked his journalist friends what they do when they get a subpoena.

Their responses were the same. Never received one, but see in-house counsel immediately.

“I didn’t have ‘in-house counsel’ to turn to,” he said. “And I’m not independently wealthy.”

AP Photo by Gerry Broome

Reporters shout questions at Durham County District Attorney Mike Nifong, right, after a community forum to discuss the rape allegations against the Duke lacrosse team at North Carolina Central University in Durham, N.C.

Bloggers like Johnson, Tina Renna and Crystal Cox and a growing number of their fellow non-traditional journalists share a similar story.

All believed they were operating as journalists when they conducted interviews, examined records, and wrote stories for their online readers.

When these bloggers received subpoenas — and minus any access to in-house counsel — they immediately researched their situation and found that, thankfully, all had shield laws in their respective states: Maine, New Jersey, Virginia and Oregon.

The shield law, which varies in the 39 states and the District of Columbia that have a version of it, protects journalists from subpoenas forcing them to testify, hand over their notebooks or identify their confidential sources.

But these bloggers quickly learned that they didn’t automatically qualify for the shield law. More often than not, the bloggers found themselves spending hours in court proving their journalist status.

And each day, thousands of new blogs — some with journalistic intentions — are born in an era when the federal government is trying to keep a tighter leash on journalists and leaks.

With a stronger call for a federal shield law after the U.S. Department of Justice announced it secretly subpoenaed and acquired the Associated Press’ phone records, some bloggers want to make sure that they, too, can stand under the umbrella of protection afforded more traditional journalists.

A win for bloggers

The latest case involves New Jersey watchdog and blogger Tina Renna who was subpoenaed by a Union County prosecutor to give up her confidential source in a story wherein she accused 16 local officials of misusing county generators in the aftermath of Hurricane Sandy.

In April, Union Superior Court Judge Karen Cassidy ruled that Renna was indeed a journalist and qualified under New Jersey’s shield law.

Renna passed a three-part test that determines whether someone qualifies as a journalist and should receive protection under the shield law, according to the judge.

Cassidy considered the three factors: whether Renna had a connection to news media, whether her purpose was to gather or disseminate news, and whether she obtained her information through “professional newsgathering activities.”

“These original posts are arguably newsworthy and constitute ‘news’ under the Statute,” Cassidy wrote in her opinion. “In addition, her method of talking to sources, attending freeholder meetings, and using Open Public Records Act requests . . . is sufficiently similar to the methods used by traditional news media entities.”

In an interview, Renna said she fought the subpoena not just for herself but to set a precedent on behalf of other bloggers.

“Us citizen journalists out here, we’re just trying to shine a light on government and trying to do the best we can. Doesn’t mean we should not be protected,” she said. “We’re doing the same job.”

Guilty in the act of committing journalism

The question, said blogger Waldo Jaquith of Virginia, is not whether someone is a journalist.

“It’s irrelevant,” he said. “The bigger question is: was someone committing an act of journalism at that time?”

In January 2009, the Charlottesville resident was subpoenaed for the identifying information of everyone who posted comments to a blog post he wrote about a defamation suit brought on by a chicken farmer against the local newspaper. The broad subpoena also sought the IP addresses for every viewer of the post, the names and/or IP addresses for everyone who commented on the article, the time and date of every comment and all computer logs generated in connection with the article. It also asked for all e-mail and other written communications Jaquith received having anything to do with the chicken farmer, the lawsuit or the article.

Jaquith believed he was acting as a journalist at that time and spent many hours researching how to prove it in court. Eventually the chicken farmer settled the defamation suit and Jaquith’s subpoena was withdrawn.

Not much has changed since then.

In a more recent case, a trial court jury ruled against blogger Crystal Cox, who was sued for libel by Obsidian Finance Group and the company’s senior principal, Kevin Padrick, in response to writings Cox had posted to her blog, obsidianfinancesucks.com. The trial court jury ruled in favor of Padrick and Obsidian and returned a $2.5 million verdict in their favor. Cox moved for a new trial, which was denied. Her case is on appeal.

In a friend-of-the-court brief, the Reporters Committee asked the U.S. Court of Appeals (9th Cir.) to review how trial courts evaluate who is a member of the news media for purposes of libel law, which in some states leads to a requirement of a higher standard of proof, which benefits journalists.

“In addressing the question of who qualifies as a member of the news media, the lower court adopted several restrictive criteria that do not take into account the fast-evolving nature of the journalism profession and that severely limited the class of individuals who can take advantage of the increased First Amendment protections that limit the law of defamation,” the Reporters Committee brief argued. “The determination of whether a particular person qualifies for such protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform.”

Cox considers herself a journalist, but prefers the term “investigative blogger.”

“I was acting as a journalist so I should be protected under the same laws as journalists are protected,” she said in an interview.

“I am getting a story. I am reading documents. Tips are coming to me. I am interviewing people. I am reading depositions,” she said. “That’s what I would expect from a good journalist.”

Jaquith said in an interview this spring that the distinction between bloggers and journalists “looks increasingly foolish with the passage of time.”

“There are perfectly respectable, well-known, credentialed reporters who write for blogs,” he said. “I mean, so much of The Washington Post now is by blogs.”

Is it the medium of publishing that defines someone as a blogger and not a journalist?

If so, then there’s the case of FoxNews.com reporter Jana Winter, who was subpoenaed in the trial of James Holmes, the accused shooter in the Colorado movie theater massacre in July 2012.

The defense wanted to know the identity of her confidential source in her exclusive story about Holmes’ notebook, which contained disturbing images and details of the mass murder.

Winter’s plight gained a lot of momentum the days leading up to her scheduled day in court. At the last minute, a new judge deferred ruling on the issue as he had not yet decided if the notebook would be admissible at trial.

Even though Winter writes exclusively for the Fox website, the question was never “is she a journalist?”

The question was whether the shield law in New York — where she lived and worked — applied or if it was Colorado — where Holmes trial was held.

A New York trial court decided that Colorado state court would be the best venue to determine whether Winter could assert a privilege and did not consider New York’s strong reporter’s privilege law in issuing the out-of-state subpoena. Her lawyers are now appealing the decision in New York, claiming that the court failed to consider in its decision the state’s strong public policy protecting New York journalists against compelled disclosure of information.

Intimidating bloggers

Bloggers often operate independently. And as such, they may likely be more intimidated by a subpoena compared to Winter who is backed by a news corporation.

Johnson believed that when Duke University lawyers subpoenaed him for the correspondence, it was “retaliatory” in nature.

“Duke was never able to give a reason as to why stuff from me and a deposition would be helpful for their case,” said Johnson.

Johnson founded a blog and co-authored a book about the fallout from the spring 2006 off-campus house party where a stripper accused several lacrosse players of rape. All charges against the players were eventually dropped due to inconsistencies in the stripper’s story. In February, Duke settled a lawsuit filed by 38 former lacrosse players, but a separate suit is still pending.

Johnson wrote regularly about the case and even traveled to Durham on his “own dime” to cover court hearings.

“When people think of bloggers, they just think of someone in front of a computer,” he said. “I was definitely engaging in newsgathering activity.”

Last July, the university subpoenaed Johnson for all correspondence he had with anyone affiliated with Duke and the lacrosse case, including administrators, players and alumni. Johnson filed a motion to quash the subpoenas, but a U.S. magistrate only narrowed the subpoenas, allowing the university to demand exchanges between Johnson and the 2006 team members and their attorneys.

The Reporters Committee filed a friend-of-the-court brief with several Maine news organizations seeking a reaffirmation of a journalist’s right to protect his confidential sources.

“The magistrate’s narrow interpretation of the law and the decision to uphold the subpoena misapplied the precedent for the reporters’ privilege in the First Circuit,” said Gregg P. Leslie, Reporters Committee legal defense director. “Beyond the importance of ensuring that journalists are free to work independently of the judicial process, upholding these subpoenas would have a very real chilling effect on reporting about important controversies.”

In March, Duke lawyers dropped the subpoenas before U.S. District Judge D. Brock Hornby could rule on whether a lower court’s decision to enforce the subpoenas should be overturned in Maine, where the Johnson lives. A lawsuit against the university stemming from the lacrosse case was also settled two days prior, making a portion of the subpoenas moot.

“I was in a very exposed position in that I had done a lot of reporting and had a lot of exchanges with sources that had given me information in confidence,” Johnson said in an interview right after the subpoena was dropped. “They would have never given me information without my assurance, and yet when I got the subpoena I was totally exposed because I had no institutional backing.”

What bloggers can do

New Jersey media law attorney Jeffrey Pollock thinks bloggers shouldn’t wait for a federal shield law. Instead, Pollock - from a lawyer’s point of view - suggests bloggers act proactively.

“Enunciate on your blog ‘I am an investigative reporter’,” he said. “If that’s where you want to go, call yourself a reporter and say that you intend to share news.”

Pollock also suggests for bloggers to write at the top of their notes “Privileged and confidential. Protected by the journalist privilege.”

While he isn’t optimistic about a federal shield law, he does believe that bloggers must be given protection.

When asked if he the term “blogger” should be included if legislators wrote a federal shield law, Pollock disagreed.

“Well, who knows what next big form it will take?” he said. “Could be (reporting) on YouTube or Twittering.”