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The issue of bloggers as journalists has stumped judges and legislators nationwide. From the Summer 2005 issue of The News…

The issue of bloggers as journalists has stumped judges and legislators nationwide.

From the Summer 2005 issue of The News Media & The Law, page 34.

By Grant Penrod

Federal appeals court judges, media lawyers, professors, Congress and editorial page editors have wrestled with the question. But the answer to “Are bloggers journalists?” is far from clear-cut and has implications for both bloggers and traditional journalists &#151 or as bloggers call them, the MSM (mainstream media).

Blog is short for Web log &#151 an Internet Web site, with writings typically organized in reverse chronological order, with links to other Web sites and commentary on their contents by the blogger. Blogs can be devoted to one topic or no topic at all. The number of bloggers publishing in the U.S. is in the millions, with some estimates exceeding 10 million. Some are diary-like personal journals, while others are devoted to collecting, covering and commenting on the latest breaking news and politics.

Rather than posing the question of whether bloggers are journalists, Kurt B. Opsahl, staff attorney at the Electronic Frontier Foundation, a nonprofit organization dedicated to defending civil liberties issues related to new technologies such as the Internet, prefers the question, “Can journalists blog?”

Asking if bloggers are journalists is like asking “Are typists journalists?” Opsahl said. “What makes a blogger? Is it using blogging software? There are personal online diary blogs, there are news blogs. So someone can use blogging software and blogging technology to be a journalist but you don’t automatically become one by using a particular software.

“You come to clear cases . . . The person writing about what their cat did that morning is not journalism. Even if they are publishing it to the world it is not really news,” he said. “But what if somebody who ordinarily writes personal diary stuff happened upon critical groundbreaking news? . . . That is something you will have to look at the facts to determine.”

Much of the controversy may stem from the fact that asking if bloggers are journalists makes it necessary to first answer the question, “What is a journalist?” something many First Amendment advocates are reluctant to do because it raises the specter of government licensing of journalists.

For that reason, it may be a question that is much more important for journalists than it is for bloggers. Ronald D. Coleman, an attorney representing the Media Bloggers Association and a blogger himself, said it “hardly ever” matters to bloggers whether they are considered journalists.

“There is a very independent streak among bloggers,” Coleman said. “They are happy to operate outside of the system and to do their work for free with no prospect of ever making any money at it in return for being left the hell alone.”

But sometimes being left alone is not an option. Last year Apple Computer filed a pair of lawsuits over information about the existence of upcoming Apple products leaked to blogs. One case, filed against Nicholas Ciarelli, a Harvard University student and the owner of thinksecret.com, over his revealing Apple’s Mac Mini computer before it was officially announced, is still in its early stages.

In the other case, Apple sued 25 unnamed “John Doe” defendants, presumably Apple employees who may have leaked information about an Apple product that would allow musical instruments to be connected to the computer for recording, after details about the product appeared on the O’Grady’s Powerpage and Apple Insider Web sites. Apple subpoenaed Powerpage’s Internet service provider for e-mail records that would identify who anonymously leaked the information. Jason O’Grady, the owner of Powerpage, Kasper Jade, the pseudonymous owner of Apple Insider, and Monish Bhatia, the publisher of the service that hosts Apple Insider, intervened in the lawsuit to try and block the subpoena, claiming that the identity of the confidential sources was protected by California’s reporter’s shield law and the First Amendment-based reporter’s privilege.

O’Grady, Jade and Bhatia are represented by the Electronic Frontier Foundation.

“In the spectrum of online journalists our guys are very much on the journalistic side,” Opsahl said. “They have been covering this news with daily news reports for, in one case 10 and in the other case eight years. They have a track record, they write articles that have the look and feel of journalistic endeavors.”

In March, San Jose, Calif., Superior Court Judge James P. Kleinberg ruled against the bloggers, but managed to avoid the issue of whether they are journalists.

“[I]t is far from clear that Mr. O’Grady qualifies for relief from the subpoena on the grounds advanced,” Kleinberg wrote. “Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: There is no license conferred on anyone to violate valid criminal laws.” Kleinberg held that because publishing the information violated California’s trade secret laws, no journalist would be protected by the shield law or the First Amendment.

The case has been appealed to the California Court of Appeal. The Reporters Committee for Freedom of the Press, joined by 11 other news media organizations, filed a friend-of-the-court brief in the case on behalf of the bloggers.

The issue arose in another case having nothing to do with bloggers, but instead concerning the ability of New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper to protect the identity of their confidential sources from a grand jury investigating the leak of CIA agent Valerie Plame’s identity.

In a concurring opinion, one of four opinions from a three-judge panel of the U.S. Court of Appeals in Washington, D.C., Judge David B. Sentelle pointed to the possibility of bloggers claiming the reporter’s privilege as one reason not to award it to Miller and Cooper.

“Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators?” Sentelle wrote. “Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical ‘blogger’ sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?”

The issue also was raised at a July 20 Senate Judiciary Committee hearing on the proposed federal reporter’s shield law when Sen. John Cornyn (R-Texas) asked witnesses if the bill would apply to bloggers.

“I have confidence that the thorny question of who is a journalist can be reconciled,” Cooper answered.

Columnist William Safire told the committee that “the lonely pamphleteer has the same rights as The New York Times. . . . It’s a tough line to draw, but it comes from practice and case law,” he said, noting, “It’s been done before.”

In fact, a solution has been sitting in the books for nearly 20 years. In 1987, the U.S. Court of Appeals in New York (2nd Cir.), in the case of von Bulow v. von Bulow, was faced with the difficult question of whether a nonfiction book author was entitled to the reporter’s privilege under the First Amendment. Claus von Bulow was sued by the children of his wife, Martha “Sunny” von Bulow, for allegedly injecting her with insulin and other drugs, resulting in a terminal coma.

The court, quoting the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes, held: “It is beyond peradventure that ‘[l]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'”

In order to protect the First Amendment rights of anyone engaging in journalism, regardless of whether they work alone or for the established media, the federal appellate court fashioned a test focusing on the intent of a person claiming the privilege and the function they are performing.

“We hold that the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material &#151 sought, gathered or received &#151 to disseminate information to the public and that such intent existed at the inception of the newsgathering process.”

Applying the test, the court found that the nonfiction book author was not entitled to the reporter’s privilege because while she intended to disseminate information to the public, at the time she collected the information she did not intend to write a book, but rather to assist with von Bulow’s criminal defense.

Following the von Bulow decision, a similar test was adopted by three other U.S. Courts of Appeal. In 1993 the U.S. Court of Appeals in San Francisco (9th Cir.) found that the privilege applied to an investigative book author in Shoen v. Shoen. In 1998, the U.S. Court of Appeals in Philadelphia (3rd Cir.) held that the privilege did not apply to a professional wrestling commentator in In re: Madden, and the U.S. Court of Appeals in Boston (1st Cir.) found that it did apply to two academic researchers in In re: Cusumano v. Microsoft Corp.

Opsahl said he thinks that the test is a good way for courts to handle the question of whether a particular blogger is a journalist. He rejects the notion that courts should instead rely on formal journalistic training or the editorial process as a means of determining who gets the privilege.

“The notion of professionalism &#151 having gone to school, getting training and so on &#151 and what that smacks of to me is licensing of journalism. You can’t be a journalist unless you are approved by some body and that in itself would foster an environment which is not friendly to the freedom of the press,” Opsahl said. “As a more practical matter, the truth is that even with these editorial protections main stream media will from time-to-time get stories wrong and the bloggers will sometimes be the ones who bring that to the world’s attention. They do actually have an editorial process of sorts, which is that bloggers comment on each other as much as they comment on mainstream media. So I’m not sure whether there is as sharp a distinction between the mainstream media’s editorial process and bloggers as some people would like.”

Coleman agrees that employment in the traditional media is a poor way to decide who is a journalist and who is not. “Why don’t we just admit that the paradigm has changed and that everyone has access to free expression?” he said. “The idea of the ink-stained wretches is very quaint but it is essentially a lot like romanticizing about the guys who work on the railroad. We’re not living in that world anymore.”

But ultimately, Coleman said he thinks that because the privilege cannot be applied only to the traditional media, no one should get it. “I think no one should be entitled to more speech than anyone else,” he said. “The problem is that we’re going to end up with a million gradations of propriety of the application of that argument and that’s why I think the privilege does have to go.

“If you have information relevant to a criminal matter the fact that you promised someone not to tell it and you call yourself a journalist . . . shouldn’t in my view make you not have to obey the law,” he said.

Opsahl thinks that the changing nature of news media, and the courts’ demonstration of their ability to apply the von Bulow test, makes providing the protections of the reporter’s privilege to bloggers who practice journalism both workable and necessary.

“The democratization of media inherent in blogging &#151 allowing any individual with limited investment to get on that soapbox and speak to an audience of millions &#151 is adding great things to the public debate and it is critical to the free flow of information that this new form of media be able to promise confidentiality to their sources. Many stories will break first on a blog because perhaps the source will not feel comfortable sending it to mainstream media, perhaps because the blog is specialized in that particular area where you will find breaking stories coming there first. If we don’t provide them with that ability to promise confidentiality and have the courts back up that promise, that will restrict the flow of information and ultimately make the public debate much worse for it.”