Is this blog "media"? Am I a "journalist"?
We spent some time on the public radio yesterday as a guest on a talk show that was taking up the question whether or when bloggers are "media" or "journalists." The question comes up quite a bit these days -- for example, when bloggers try to attend "executive sessions" of public governing bodies or try to resist subpoenas that would make them reveal their sources.
The occasion for the latest round of attention is the huge libel judgment that was rendered recently against Crystal Cox, a Montana blogger who had defamed a lawyer in Oregon who was serving as a bankruptcy trustee. In the course of deciding that case, federal Judge Marco Hernandez, here in Portland, ruled that the blogger wasn't "media," and the criteria he used to make that decision are controversial, to say the least. Under his approach to the question, it's not clear whether yours truly would make the cut or not. Working against us, in his view, are the facts that we do this alone, and we don't print out our content on dead trees.
We think the judge got the result right in the case before him, but the route he took to get there was troublesome. Fashioning a better approach is going to be important if freedom of speech is going to be protected, but it will be no easy task.
Be that as it may, we learned quite a bit getting ready for the show. One important facet of the case is that the judge's interpretation of the Oregon media shield law -- the Watergate-era law that allows media workers to protect their confidential sources -- probably was irrelevant. That law specifically states that it can't be used by a libel defendant such as Cox. And so whether she is or isn't "media" for purposes of that statute was an academic question that the judge didn't need to reach.
More troublesome, though, is an Oregon Supreme Court opinion from the '80s, in which "media" was singled out for enhanced protection under the constitution in defamation cases. Under that decision, which involved the Bank of Oregon and Willamette Week, if a "media" figure commits libel (harmful untruth) against a person who is not a "public figure," he or she can't be held responsible unless his or her conduct was negligent. If someone is not "media," however, apparently Oregon law may hold him or her liable for the defamation without regard to whether he or she was negligent. It's the old "strict liability" concept for libel and slander -- if what you say is untrue and it damages someone, you're on the hook. That concept has been on the run since the early '70s, but apparently it still survives in the Beaver State in 2011.
And it doesn't sound right to us. There is plenty of precedent for the proposition that the constitutional guarantee of freedom of the press covers the "lonely pamphleteer" as well as the large corporate print institution. Those of us in the former category here in Oregon would like that recognized. Maybe the brilliant minds of our state legislature could get on the issue.