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This page contains a single entry from the blog posted on December 6, 2011 1:20 PM. The previous post in this blog was More car hater propaganda from Portland City Hall. The next post in this blog is Feds fine PacifiCorp $3.9 million. Many more can be found on the main index page or by looking through the archives.

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Tuesday, December 6, 2011

Federal judge says bloggers aren't journalists

According to U.S. District Court Judge Marco Hernandez here in Portland, who has held a blogger liable for defamation, bloggers are neither journalists nor media. Among the judge's comments:

Defendant contends that she does not have to provide the "source" of her blog post because of the protections afforded to her by Oregon's Shield Laws. I disagree. First, although defendant is a self-proclaimed "investigative blogger" and defines herself as "media," the record fails to show that 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. Thus, she is not entitled to the protections of the law in the first instance....

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

This case is sure to prompt a great deal of discussion in the blogosphere, for obvious reasons. [Via Lars Larson.]

Comments (36)

So I'm assuming he would make the same finding regarding Fox News based on those criteria.

"she is not entitled to the protections of the law in the first instance"

What law does this refer to?

What I find interesting is how easy it would be to follow most of the "evidence of journalism" and be a total sham, sort of like the "O" and many other paper printers.

Repeatedly we see the same argument repeated to keep bloggers away from meetings and information.

Start an organization, or several, that uses words like media, fairness, standards, credentials, education, (well OK, Green and sustainability)and what not. put logos an your site, Print some letter heads, Claim a library or park address...recognize each other etc...
This could be set up in and evening or two..

What law does this refer to?

The Oregon shield law, I believe. You can click on the link and read the whole opinion.

Using the seven-point test above, our gracious host here meets at least four of the qualifications.

For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

Apparently, Marco's an illiterate idiot.

Oregon's shield law specifically states: No person connected with, employed by or engaged in any medium of communication to the public shall be required by ... a judicial officer ... to disclose, by subpoena or otherwise ... [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

There's no requirement for (1)an education in journalism [in fact, some of the worst "journalists" in the state have a degree in journalism]. (2)There is no requirement for affiliation with any organization. (3) There is no requirement for adherence to "journalistic standards" [see item (1) above]. (4)There is no requirement addressing the keeping of notes. (5)There is no requirement addressing "agreement". (6)There is no requirement addressing creation of an independent product (the "judge" may wish to apply this standard to mainstream reportage of the late Friday DoJ document dump - most media simply cut-and-pasted the AP interpretation - even the headlines were identical: Justice Dept. details how it got statements wrong (sfgate.com)
Justice Dept. details how it got Fast and Furious statements wrong (seattletimes.nwsource.com)

(7)There is no requirement to "contact the other side"; see Woodward and Berstein.

Marco's clearly an idiot; undeserving of any position involving responsibility.

What else is new around here?

Quite shocking. If the "judge" had made up (a) his mind, and then (b) a bunch of nonsense to justify that, would the opinion look any different?

MAX hits the issue squarely on the head.
Something fishy about this decision, but she should have had enough smarts to know to get some sort of decent attorney.

That was stupid of her.

Wow, I found her blog just to get a bit of the background and, wow. http://www.realestatehoax.com/

The first paragraph excerpted in Mr. Bogdanski's post relates to whether the blogger could be compelled to reveal her source under Oregon's Shield law. The court ruled she didn't meet the definition (which could easily be changed to include blogs) for that purpose. Moreover, the Court went on to point out that even if the Shield law applied, it has an exception when the action is one for defamation like this.

The second paragraph excerpted from the opinion relates to whether the plaintiff would be held to a higher burden of proof and the type of damages available (when plaintiffs were not public figures, but defendant was "media," plaintiffs had to prove that defendants were negligent in publishing the challenged article).

Its an interesting balance to look at - but she may not be a poster child.

Note, my statements are not intended to be assertions of fact, merely expressions of my opinion.

If she worked at the Oregonian, by my read of the Shield law and exception in the judge's opinion, she still would have been compelled to reveal her source because she was asserting it as a defense to the defamation.


Using the seven-point test above, our gracious host here meets at least four of the qualifications.

Five if he renames his blog The Bojack Times or the Bogdanski Institute for Media Studies.

Do you consider yourself a journalist bojack?

When you call someone a "liar, thief, fraud" etc., it would be wise to have some facts to back it up with. If a blogger is just spewing unsubtantiated accusations, it might be wise to state it as an opinion. Seems like that could have saved the blogger a lot of grief.

Max: Marco's clearly an idiot; undeserving of any position involving responsibility.

Really? Or perhaps you just disagree? Max is the epitome of why the blogging community isn't taken seriously by many. I know Judge Hernandez personally, and while I tend to think many bloggers do as good a job or better than many in the "official" media, anyone who knows Judge Hernandez and the story of his path in life knows he is no idiot.

Keep up the good work, Max. Your lack of legal understanding, dearth of basic research and personal attacks will surely call attention to the Blogosphere's high ethical standards and profound dedication to reason.

Summit 1031 was a classic Ponzi Scheme. The principals of that firm knowingly took OPM and spent it on themselves. They also grabbed more of OPM and gave it to earlier investors. My opinion on the subject is quite factual. Most have been convicted, methinks.

I think there is a real question of whether all bloggers are journalists. Don't know where I come down.

But the idea that you have to work for a media company to be a journalist seems wrongheaded or even dangerous. What if someone like Matt Taibbi leaves Rolling Stone and decided to keep writing stories for his own website. He isn't protected as a journalist because some Important Media Organization isn't signing his paycheck?

Really 5 gen? Did you bother to read his "reasoning"? Did you bother to compare it - as I did - with the actual law? Or do you simply support him because you consider him your buddy?

You yap about "personal attacks", yet engage joyously in them yourself.
Keep up the good work, 5 gen - you're obviously on a roll.

Don't let anything as trivial as facts get in your way.

You epitomize why folks like Neil and other "good ol' boys" are reviled in the Portland blogosphere.

Yes, I read his reasoning, which directly addresses the definition of "medium of communication" from the statute. I assumed you hadn't compared anything to the "actual law" because you apparently ignored (or at least glossed over) the definitions in ORS 44.510, among other things.

On matters of legal interpretation, I typically recognize my limits and defer to legal experts. Like Federal Judges, especially those nominated twice by Presidents from different parties, and widely respected by the lawyers who come through their courtrooms.

Then perhaps you missed this part: or engaged in any medium of communication to the public.

Is there something about the wording that you and your buddy find unclear?

Really, you don't need a law degree to understand it.

Though perhaps you'd like to engage in a debate over what the meaning of the word, "is", is.

Believe it or not, I know his background. I'm very aware of the fact that Bush nominated him, and that he was re-nominated by Obama. So what? Bush did a lot of stupid stuff, though he admittedly looks like a genius when compared to Barry.

By all means, Stand By Your Man. Be a pal. Ignore the fact that his decision is idiotic.

I stated the facts: his "reasoning" vs. Oregon law, and I took apart each of his seven "reasons"; you have yet to address even one.

That's understandable: you know him and you like him, and so you rise to his defense if somebody without a law degree has the audacity to state the obvious. It might even be commendable behavior on your part, were it not for the fact that you're rising to the defense of a guy who made a really stupid decision that will likely be overturned once the EFF gets involved (and they undoubtedly will).

As it stands now, you're just following a long-standing Oregon pattern of cronyism.

Next time you run into Neil, give him this from me: DIAF.

Max,
"Medium of communication" is a defined term. Have you bothered to look at the definition to determine whether blogging fits?

P.s. having met Judge Hernandez, I find it highly unlikely that he is a) an idiot, and b) bloodthirsty for bloggers.

Looks like a good case for use of a Certified Question of Law submission to the Oregon Supreme Court.

"Defendant cites no cases indicating that a self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim. Without any controlling or persuasive authority on the issue,"

If a blog host is not subject to potential defamation suit by known commenters could a commenter assert that the Oregon law also shields them?

We don't want to have inconsistent rulings, do we?

As a side note, Ms. Cox was toast from the beginning, going pro se against Steve Wilker.
Advice for anyone in Oregon federal court pro se: the court here has an excellent pro bono program, full of outstanding lawyers who have pledged to help you, for free. Use them!

Perhaps, we should call on our legislators to expand the definition of "medium of communication" in the statute?

Our neighbor to the north, the State of Washington, protects the "news media" which they define as: "any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution."

But then there's that pesky word "entity"...

'Medium of communication' is a defined term. Have you bothered to look at the definition to determine whether blogging fits?

From http://www.oregonlaws.org/ors/44.510

"'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. ..."

The authors of this law recognized that they could not explicitly list every present or future medium covered by the statutes, so they had the foresight to not limit their definition to the listed media. Unfortunately, Judge Hernandez (and apparently 5th Gen & Bryan) have ignored this.

On a cable-access tv show, which is IS covered by this definition, there is no requirement for (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story.

Does anyone here really believe that Mr. Bogdanski or any other blogger should be afforded less protection than some idiot blathering away on a cable-access show?

But then there's that pesky word "entity"...

Indeed.

Oops, I left an ambiguity:

If a blog host is not subject to potential defamation suit [for comments posted] by known commenters could a commenter assert that the Oregon law also shields them?

JD in the NE,

Public media is different than say the private utterances of a former employer to a prospective employer about a job applicant. The Shield Law provides, in my opinion, a non-comprehensive listing of examples. I think that the legal validity of the Shield Law should be the same for me if I comment here as it would be for the Oregonian. But then again, I view the Oregonian as a political action committee that must post receipts and expenses on ORESTAR for their political speech.

The case never did resolve the truth or falsity of the accusation. A non-governmental plaintiff needs to have some sort of potential remedy against another non-governmental party. If the Oregonian were to call me evil, with "God" as their only source, could I object?

One possible outcome is the Oregon Supreme Court could say (in response to a Certified Question of Law) that the statute does indeed cover bloggers -- and likely the comments by commenters on such blogs. The plaintiff's huge claim for damages is like an admission that the blog posts were widely read just as if it were big media, though I have never heard of the sites or the author before. But then the court would have to address the notion that the Oregon Constitution contains a provision providing that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

See, Davidson v. Rogers, 281 Or 219, 224-25 (1978)

Defamation is a special case, addressed by more than one provision of article I, Oregon's Bill of Rights. The focus of section 10 is on assuring a remedy to one whose reputation has been injured. At the same time, article I, section 8, forbids all laws "restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," with the proviso that "every person shall be responsible for the abuse of this right." The two sections must be construed together. They yield a coherent view of freedom and responsibility. The responsibility prescribed in section 8 is responsibility to others for injuries done to them, such as the injury to reputation accorded constitutional stature in section 10. Laws limited to remedying such injuries alone are not laws restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever. Laws that in terms impose sanctions on speech or writing beyond the needs of remedying such injuries, whether statutory or common law, are restraints and restrictions forbidden by section 8.

The Oregon Supreme Court could choose to strike down the Shield Law because it denied a private party a constitutionally protected right to a remedy. This would not change the result of the case -- a finding of liability -- but I would be happier knowing that I could sue the Oregonian and that they could not wield the Shield Law against me because of their special privilege.

Bad facts make bad law. The jury found her liable and the judge ruled she had no special status to protect her from that verdict of her peers. I don't have a problem with that result in that case. It is unfortunate precedent however for responsible bloggers like Jack.

"On a cable-access tv show, which is IS covered by this definition, there is no requirement for (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story.

Does anyone here really believe that Mr. Bogdanski or any other blogger should be afforded less protection than some idiot blathering away on a cable-access show?"

Not I. I rather think Jack should have more protections than the purveyors on FOX News. His postings are far more accurate.

I don't think that FOX News qualifies under those specifications, y'know.

But that's just my opinion.

On a cable-access tv show, which is IS covered by this definition, there is no requirement for (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story.

Does anyone here really believe that Mr. Bogdanski or any other blogger should be afforded less protection than some idiot blathering away on a cable-access show?

Not I. I rather think Jack should have more protections than the purveyors on FOX News. His postings are far more accurate.

I don't think that FOX News qualifies under those specifications, y'know.

Not much of an issue. I don't think bloggers are journalists anymore than I think Rush Limbaugh is anything more than an entertainer.

This case goes to show just how much legal tout bloggers have. If there was any money in blogging, then competent attorneys would have been hired and the decision would have gone the other way.

And taking this to the Supremes ain't going to make it more legit, it will make it more absurd.

If the bloggers win and their right to record is upheld as a 1st Amendment right, then perverts everywhere who sit in trees, breathe deeply, and record a woman undressing will be legally allowed to do so because they are the "media" and are "journalists." Is this legally defensible if he has a website and a modicum of online traffic to his website?

How would you feel if some weirdo recording children at school on recess? What would you say when he says I am a blogger which makes me a journalist and part of the media!? Will you defend him? Is his personal blogging legitimate media?

The solution is clear: Don’t say anything online that you’re not willing to defend in court… but if you have a chance to attribute statements blindly in print or television, go crazy.

http://techland.time.com/2011/12/07/oregon-court-rules-blogging-isnt-journalism/

Where it becomes absurd is that anyone who creates a website nowadays (it ain't the 1990s where you had to type in the HTML language) can go around with a smart phone recording video and taking pictures and then turn around and say "I'm a journalist" when the shoe does not fit.

In essence, this whole argument is about creating special privileges vs. dealing with the consequences of free speech. You can say, record and take pictures, but be prepared to deal with the consequences up to and above physical violence by an individual or mob.

Leave journalism to the journalists. Sure you may have discovered a passion for "citizen journalism" at age 50 and walk around recording the police making arrests because you hate police, but don't expect a bullet proof case in court if the police don't take too kindly to your interference in their daily work. You are not a journalist. You are just some individual with a grudge and journalists everywhere should be outraged that you are invoking their paying profession in order to protect yourself from the consequences of free speech and freedom of expression.

Bryan, Would you be so kind as to supply us with the definition of "medium of communication?. I would like to see an investigation of the facts in the underlying case. Many people in Oregon are aware of bankruptcy fraud involving trustees. And both judges and district attorneys can be manipulated by "important lawyers".
I have testified in Marco's court and considered him neither particularly idiotic nor particularly brilliant.

When searching "medium of communication" I ran across the following:

State ex rel Meyers v. Howell, 86 Or App 570, 575-76 (1987)

"The right to compulsory process for necessary and material witnesses on his behalf is a valuable right guaranteed to an accused. It is a right that cannot be denied by legislative act or failure to act. In the interest of justice, it is the duty of courts to enforce the right. When all is said and done, in every criminal proceeding, as well as in the trial of all other cases, the primary aim of the law is to arrive at the truth of the matter in controversy, and no obstacle should be sanctioned that would deny the presence of a competent witness who has knowledge of material facts." [State ex rel Gladden v. Lonergan, 201 Or 163, 189], 269 P.2d 491 [(1954)]. (emphasis added)

The case is a useful read generally. Then there is this bit of judicial wiggle space to achieve the desired outcome:

"only the withholding of evidence that is material and favorable to a criminal defendant gives rise to a claim of violation of the Compulsory Process Clauses." 86 Or App at 578

Would the Oregon Supreme Court require that the party claiming defamation make a predicate showing that the undisclosed source (if there even is one) would speak favorably for the plaintiff? I would hope not.


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Kent Haruf - Eventide
David Halberstam - Summer of '49
Norman Mailer - The Naked and the Dead
Maria Dermoȗt - The Ten Thousand Things
William Faulkner - As I Lay Dying
Markus Zusak - The Book Thief
Christopher Buckley - Thank You for Smoking
William Shakespeare - Othello
Joseph Conrad - Heart of Darkness
Bill Bryson - A Short History of Nearly Everything
Cheryl Strayed - Tiny Beautiful Things
Sara Varon - Bake Sale
Stephen King - 11/22/63
Paul Goldstein - Errors and Omissions
Mark Twain - A Connecticut Yankee in King Arthur's Court
Steve Martin - Born Standing Up: A Comic's Life
Beverly Cleary - A Girl from Yamhill, a Memoir
Kent Haruf - Plainsong
Hope Larson - A Wrinkle in Time, the Graphic Novel
Rudyard Kipling - Kim
Peter Ames Carlin - Bruce
Fran Cannon Slayton - When the Whistle Blows
Neil Young - Waging Heavy Peace
Mark Bego - Aretha Franklin, the Queen of Soul (2012 ed.)
Jenny Lawson - Let's Pretend This Never Happened
J.D. Salinger - Franny and Zooey
Charles Dickens - A Christmas Carol
Timothy Egan - The Big Burn
Deborah Eisenberg - Transactions in a Foreign Currency
Kurt Vonnegut Jr. - Slaughterhouse Five
Kathryn Lance - Pandora's Genes
Cheryl Strayed - Wild
Fyodor Dostoyevsky - The Brothers Karamazov
Jack London - The House of Pride, and Other Tales of Hawaii
Jack Walker - The Extraordinary Rendition of Vincent Dellamaria
Colum McCann - Let the Great World Spin
Niccolò Machiavelli - The Prince
Harper Lee - To Kill a Mockingbird
Emma McLaughlin & Nicola Kraus - The Nanny Diaries
Brian Selznick - The Invention of Hugo Cabret
Sharon Creech - Walk Two Moons
Keith Richards - Life
F. Sionil Jose - Dusk
Natalie Babbitt - Tuck Everlasting
Justin Halpern - S#*t My Dad Says
Mark Herrmann - The Curmudgeon's Guide to Practicing Law
Barry Glassner - The Gospel of Food
Phil Stanford - The Peyton-Allan Files
Jesse Katz - The Opposite Field
Evelyn Waugh - Brideshead Revisited
J.K. Rowling - Harry Potter and the Sorcerer's Stone
David Sedaris - Holidays on Ice
Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 113
At this date last year: 155
Total run in 2016: 155
In 2015: 271
In 2014: 401
In 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269


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