The "Who Counts as Press" Question Comes to Court

UPDATED BELOW

A district court judge in Portland, Oregon, just ruled that a blogger was not a "journalist" and therefore was not entitled to the First Amendment media shield law protection afforded the press by New York Times v. Sullivan the Oregon state statute. (The case did not reach the First Amendment question, though it was certainly lurking in the background: see below.) The judge ruled that Crystal Cox was not entitled to the protection because of her lack of professional affiliation, and in the end, she was hit with $2.5 million in damages for defamation.

I've written about this issue before. (In fact, I totally called this: "Soon, law is going to have to address this issue, whether it be because of Colbert, Wikileaks, or maybe in a libel suit that comes out of a blog.") I argued that being "press" for the purposes of the law can only be remotely consistent if considered an action rather than a status. That is, someone is press when engaged in press-like actions. The constitution does not talk about "professional journalists," like the judge somehow seems to think (with the exceptions of "book" and "pamphlet"):

[A]lthough 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.

As David Schraub points out, the dismissiveness of this judge is exceptionally weird when you read that he included pamphlets:

[H]ow does one "affiliate" with a "pamphlet"? Pamphlets, of course, were a key aspect of public communication at the time of the founding, and they bear much in common with modern blogs -- they were produced individually, with varying degrees of professionalism, and were circulated organically and haphazardly. Their status as "media" stems not because they approximate newspapers, but because they are opining to the public about public affairs in an intentionally public manner.

But this really goes back to what I said last time. The law has one of two options: Draw an arbitrary line that is both senseless and contains very difficult contours to define, or define "press" based on the action:

Because there is no principled way to determine whether a person or entity is "press," asking who counts is the wrong approach. What the law should do is recognize that being "press" is an action. As Jay Rosen has put it: "The most basic act of journalism, by no means limited to journalists, is when someone says to us, 'I was there, you weren’t, let me tell you about it.'" Or alternatively, "I read this document, you didn't, let me tell you about it." If we think about it, protecting that - information dissemination - is the point of the press clause.

The article tells us that Ms. Cox represented herself. I can only hope that this is why she lost the case, as it's always a terrible idea. (Literally one of the first things I was told by an instructor in law school was never to represent myself.) I will echo David's sentiment that hopefully she either gets a lawyer for the appeal, or a public interest organization, maybe Reporters' Committee for Freedom of the Press or the ACLU will come in and help.

UPDATE: A commenter on reddit pointed out to me that the case was actually about a state media shield law, rather than the First Amendment. Of course, because this was a defamation suit, the New York Times v. Sullivan question should also have been decided before a person claiming to be press could be liable for damages. For those who don't remember, Sullivan said that the press could not be liable for defamation of a public figure unless acting with "actual malice," which is to say, intentionally lying.

In this case, the judge decided that Ms. Cox was not a member of the media, and thus not entitled to the shield law protection, but he must have also concluded that she was not a member of the media for First Amendment purposes or the case would have been dismissed on those grounds under Sullivan. It appears he did not address the question, and his decision that she is not press is probably why, even though it is not obvious that the definition of "media" in the media shield law and "press" in the Constitution are one and the same. (Not to mention that the definition for the purposes of the shield law itself seems much broader than he read it to be. The statute applies to a "person connected with, employed by or engaged in any medium of communication to the public.") Of course, it is possible Ms. Cox never raised that question, more likely even because she represented herself. I can't seem to find the actual ruling, so I don't know for sure. Either way, though, it should come up on appeal.