Having, like the NYT journalist, read the decision and various information about the case, I take almost the opposite tack. It's not the ruling on whether she is a journalist that is irrelevant, that's actually the key point. The person probably did engage in defamation.
The problem is the judge used this case to make a wide ranging and unnecessary determination that bloggers are not journalists because they don't work for big traditional organizations like the NYT. Now the NYT, the employer of the author of this article, is, like many traditional media organizations, financially threatened by independent bloggers who have been gaining massive traction and readership over the last decade that draws away from traditional large media. The publisher and supporters of giant consolidated media are threatened by loss of consolidated points of media control which special interests can leverage. Completely independent journalists, including many bloggers, have been threatening the status quo for some time. Overreaching court rulings that only those working for corporate agencies are "legitimate" certainly serve the interests of those in power.
Whether the independent journalist/blogger in question was guilty of defamation didn't require such a finding about their status as a journalist so the decision is certainly overreaching.
On the issue of the Oregon Shield Law, the judge certainly misrepresented it since by stating (exact quote from 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.", it says INCLUDES BUT IS NOT LIMITED TO, in its definition of "Mediums of Communication". The definition of "medium of communication" is critical because in ORS 44.520 the law reads "No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise..." Not just employed by, but connected with or engaged in any medium of communication to the public. Any reasonable reading of this law will include independent journalists and bloggers.
This is probably the most telling bit of information:
The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information. [1973 c.22 ss.4,5; 1979 c.820 s.2]
So the case could have been won even if she had been ruled a "journalist". This is the problem with the ruling.
the judge decided this based on the lack 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."
(2) is maybe questionable; but (3), (4), and (7) are legitimate reasons.
(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;
(7) contacting 'the other side' to get both sides of a story.
I don't buy any of these at all.
#1 and #2 say that you need a piece of paper to be a journalist. It's not true, as you can see from independent bloggers in eg Arab states covering the various revolutions.
#3 through 5 says that you need to have "standards" to be a journalist. Again there is no one to bell the cat. If your rush expose has numerous misspellings, do you lose your status? How closely must you check your facts? How much conflict of interest must you disclose? "Disclosure: the author loves Apple products." Similarly for keeping notes and being up front with your sources. If you don't do it we might call what you're doing "bad journalism". But it's not "not journalism".
#6 says that aggregators are not journalists. To a degree I think this is true; see below.
#7 says that unless you provide fair views or equal time, you're not a journalist. I put this together with #3 to #5.
As a thought exercise, see which of your favorite journalism organizations pass the filter on any given day.
Now that that's out of the way, what is journalism? It's broadcasting an eyewitness account, or original ideas derived from an eyewitness account, to the public. And that's it. This is why I might exclude aggregators who don't add independent content.
Freedom of the press means freedom to publish and be read without censorship. We are all publishing all the time. This doesn't mean that we need to somehow narrow the field of journalism to exclude the unwashed masses, as this judge's opinion strains to do. We might need to specify the definition of "journalistic activity" if we need to carve out special protections.
> #1 and #2 say that you need a piece of paper to be a journalist.
no, they say that if you have a piece of paper, you could be a journalist. if you have no paper, but meet other criteria, you could be a journalist.
> #3 through 5 says that you need to have "standards" to be a journalist
yup
> Again there is no one to bell the cat
judges bell cats. that's the whole point of the judicial system. i'm going to show you how a reasonable judge (hey, reasonable person) would apply this standard:
> If your rush expose has numerous misspellings, do you lose your status?
nope. that's nowhere in the standard.
> How closely must you check your facts?
depends on the facts. something controversial? probably pretty closely. something obvious? probably not all that close. the important thing is that this is something that you as an organization do. cox didn't do any at all. great, doesn't meet this standard.
> How much conflict of interest must you disclose? "Disclosure: the author loves Apple products."
that's not a conflict of interest.
> Similarly for keeping notes and being up front with your sources.
seriously? you're okay with people who don't keep notes and lie to their sources "journalists"? the issue is not whether you didn't keep notes that one time. cox never did. she's not a journalist.
> #7 says that unless you provide fair views or equal time
nope. it just says you have to contact the opposing party for their perspective. you don't have to devote half your article to them. you'll notice that fox news has democrats on for their pundits to yell at. of course, cox never contacted the plaintiff for his opinion.
> what is journalism? It's broadcasting an eyewitness account, or original ideas derived from an eyewitness account, to the public
no. that's tweeting. if you think people anybody who writes anything about the real world special protections not afforded to the rest of the population, you're insane. the issue at hand is whether or not certain people get special protections (particularly from subpoenas). look, if you tweet about a murder that you heard about from someone, the DA can subpoena you for your source and your testimony. if you tweet about it, that doesn't make you a journalist immune from divulging your sources.
> Freedom of the press means freedom to publish and be read without censorship.
yup. there's no first amendment issue here! cox made defamatory statements; those are not neither covered under shield laws nor the first amendment!
> doesn't mean that we need to somehow narrow the field of journalism to exclude the unwashed masses
publishing and journalism are not the same! we provide journalists with special protections because they provide us (the public) with something valuable (journalism). we pass laws giving them special treatment (we're not allowed to subpoena their sources), and as such, we should definitely expect certain standards from them. i don't think the bar for journalism should be super high, but that doesn't not make everyone a journalist.
> We might need to specify the definition of "journalistic activity" if we need to carve out special protections.
that's the whole point. shield laws apply only to journalists. that's the question at hand.
Unless it's in a text of law, it's not legitimate.
This is not correct. There's always some degree of ambiguity, and as the Courts hear cases that test those ambiguities, those precedents -- known as "case law" -- effectively become part of the law, even though they're not in the text.
Very very incorrect. See http://en.wikipedia.org/wiki/Case_law and http://en.wikipedia.org/wiki/Common_law , which have the force of law but are neither statutory nor regulatory law (which I assume is what you mean by “a text of law”; arguably case law, since it is in the form of written decisions, actually is “a text of law” anyway).
That's the point, I think: the judge shouldn't have decided the question of whether the shield law applied to bloggers, because it wouldn't have provided a shield in this case anyway.
edit: Though come to think of it, maybe the judge though that was the easier question (wrongly, imo), and so looked at it in the other direction: since we can decide that bloggers aren't journalists, we don't need to unnecessarily decide the question of what behavior the Oregon Shield Law shields.
"Oregon law provides special legal protections against defamation lawsuits to journalists associated with traditional media outlets. Such publications are immune from defamation suits unless the defamed individual first requests a retraction. Journalists at recognized media outlets are also protected from revealing confidential sources. Cox argued that she was eligible for protection under both provisions and asked the judge to set aside the verdict."
If the NY Times has the right facts I'm wondering if the judge was trying to give Mr. Padrick some justice. Anyone know what Oregon's shield law has to say about magazines that are defamatory?
The shield law "do[es] not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."
The problem is the judge used this case to make a wide ranging and unnecessary determination that bloggers are not journalists because they don't work for big traditional organizations like the NYT. Now the NYT, the employer of the author of this article, is, like many traditional media organizations, financially threatened by independent bloggers who have been gaining massive traction and readership over the last decade that draws away from traditional large media. The publisher and supporters of giant consolidated media are threatened by loss of consolidated points of media control which special interests can leverage. Completely independent journalists, including many bloggers, have been threatening the status quo for some time. Overreaching court rulings that only those working for corporate agencies are "legitimate" certainly serve the interests of those in power.
Whether the independent journalist/blogger in question was guilty of defamation didn't require such a finding about their status as a journalist so the decision is certainly overreaching.
On the issue of the Oregon Shield Law, the judge certainly misrepresented it since by stating (exact quote from 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.", it says INCLUDES BUT IS NOT LIMITED TO, in its definition of "Mediums of Communication". The definition of "medium of communication" is critical because in ORS 44.520 the law reads "No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise..." Not just employed by, but connected with or engaged in any medium of communication to the public. Any reasonable reading of this law will include independent journalists and bloggers.
Full text of Oregon Shield law: http://www.orenews.com/web/legal/shieldslaw.php