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"Losing my faith in humanity ... one neocon at a time."

Wednesday, February 02, 2005

Speech or Press? Cake or Death?

posted by Jazz at 2/02/2005 11:39:00 AM

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Some interesting questions are being raised in the Christian Science Monitor today. They are looking at the current case of Apple Computer suing a 19 year old blogger who released insider company information on his web site. They are demanding to know where he got the product information (which had not been released to the public) and the courts will have to answer the question of whether or not the confidentiality of the blogger's "sources" is protected as it is for conventional journalists.
Are [bloggers] journalists with an obligation to check facts, run corrections, and disclose conflicts of interest? Or are they ordinary opinion-slingers, like barbers or bartenders, with no special responsibilities - or rights?
So... is blogging a part of "the press" or is it individual speech? The bill of rights certainly drew a distinction between the two, calling out separately that congress shall make no law abridging "the freedom of speech or of the press." Then again, even giving full credit to the incredible foresight of the founders, there was no way they could have seen blogs coming.

The New York Times runs a web site for their paper, and it often includes "web exclusives" which do not appear in the hard copy version. This case begs the question, if the content isn't printed on paper, but only in their online version, is that material part of "the press" and protected by the same shield laws? Or is it suddenly just "speech" which seems to receive a lower level of protection in the courts?

The article gives an interesting example without directly answering the question.

Ultimately, the issue comes down to whether bloggers act like traditional journalists, says University of Iowa law professor and First Amendment specialist Randall Bezanson. Simply expressing opinions to a tiny audience doesn't count, he says. If so, "then I'm a journalist when I write a letter to my mother reporting on what I'm doing. I don't think the [constitutional] free-press clause was intended to extend its protections to letters to mothers from sons."

Probably not. But what if Mom fact-checks and posts the letter on her blog for thousands of people to read? Is she a journalist then? Courts may make the final call.

My initial reaction to this question when it first arose was to say that bloggers are most certainly not journalists, any more than you are a journalist if you write a letter to the editor which is then printed in your local paper. You are certainly an author, but not a journalist, per se. But the more I thought about it, the more I began to see the flaw in that line of reasoning. When you send a letter to the editor (or to your mother, as in the case above) you really aren't the one doing the publishing. You are creating content, yes - but you're not publishing it for public consumption.

Bloggers also create content, easily passing the test of being an "author" for this scenario. But they then go on to do the follow-up step of actually publishing the content in a forum making the information available for wide public consumption. The reason the term "letter to the editor" is important here is because the author is not writing a letter to the public. They are writing to the editor (who is the publisher) in the hopes that they will go on to publish the letter in their newspaper. In this sense, it seems that bloggers do, in fact, pass the basic test of qualifying as "the press" as addressed in this court case.

So congratulations, bloggers. Until such time as the court system declares that I've got my head up my ass on this one, you're all members of the fourth estate. Enjoy it while you can.

Since this is going to be strictly a question of opinion until the courts make the call, I thought I'd check in and see what some other bloggers thought about it.

Representative Hugh Hewitt (R - Saturn) somehow manages to ignore the question entirely and launches into an attack on ... Eason Jordan? How that leap was made shall remain a mystery.

Oooo... Pajama Hadin has a lot of really good background information on this and concludes that bloggers probably are journalists for the purposes of this question.

The Command Post seems to feel that bloggers are most certainly not true journalists in the conventional sense of the word, but that we must be included "in the protection soup" because there's no good way to draw legal distinctions between the two.

Power Line chooses not to comment (since the article includes the apparently court mandated fete to Hind Rocket which must appear in any MSM article on blogging) but does provide trackback links to others talking about this question.