07 July 2005

Are Bloggers Journalists & Does it Matter?

Windypundit asks me in an email (and had a post here):
Question 1: In this day of bloggers, isn't everyone at least potentially a journalist? A law that allowed journalists to protect their sources might allow anyone to claim to be a journalist and refuse to disclose a conversation.

This seemed like a reasonable objection (or at least a complication) until it occurred to me, "So what?"

Question 2: As a practical matter, how bad would it really be if nobody could be compelled to disclose a private conversation? How often are there criminal cases where (1) a witness has to disclose what someone else said, (2) it was a private conversation, (3) it's admissible, (4) the witness doesn't want to testify, (5) but does so anyway (instead of refusing or lying), (6) out of concern for a contempt charge (rather than as part of a deal on another charge).

How often would anyone even know that the conversation took place? This seems like the sort of thing that could only come up in weird circumstances, such as the national security issues present in the Plame case, or when a journalist publishes information from the conversation.
Answer 1: I think whether we are journalists depends greatly on the definition of journalism. Webster online defines it as:
1 a : the collection and editing of news for presentation through the media
b : the public press
c : an academic study concerned with the collection and editing of news or the management of a news medium

2 a : writing designed for publication in a newspaper or magazine
b : writing characterized by a direct presentation of facts or description of events without an attempt at interpretation
c : writing designed to appeal to current popular taste or public interest
I think the basic underlying theme there is that a journalist is someone who gathers original content. Once original content is provided it would seem to raise a blog into a work of journalism.

For instance, when I reported on happenings at a Virginia CLE that was journalism (1a). When I write about anecdotal things which have happened in court I think it's closer but still journalism (1a).

Analysis which argues a thesis about matters currently of interest in criminal law is probably journalism (2c); an analysis of a matter which is more theoretical may not be. However, that's a mighty thin hair and I'm not exactly sure if it should be split.

When I write purely about what has happened to me (see the next post) that's probably not. Nor do I think it's journalism when I link to other blogs or news stories and maybe make a short comment.

Basically, that's a long-winded way of stating that I think that a lot of bloggers are journalists and a lot are not; you'd have to do a case by case analysis.

Answer 2: The problem with journalists is that the conversation isn't private. It is revealed - just without attribution.

Consider this example: Let's assume that members of a local gang started reading my blog and decided to feed me information about gang activity in the city of Richmond. I start reporting it here and put pretty much everything they and their associates tell me into print. One day the girlfriend of a member tells me that she saw Boo, Sling, and Trey "finish a bunch of White-Boyz [a rival gang] down on 27th Street cuz they was fighting over the meth." The next day I publish the fact that last week's unsolved ambush murders were done by the "27th Street Thugz."

Is my conversation with the girlfriend private? Not really; she knew when she told me that I would publish the information. She probably thought it would be good for the gang's reputation. However, she does expect that I won't sic the police on her for telling me the information.

Are there serious reasons that I don't want to disclose that information? Yes. I'd lose my sources. Other sources wouldn't want to deal with me. The girl's life would be put in serious danger. My life might be put in danger ("get the snitch").

On the other side is the strong need to solve 4 murders done in broad daylight, two blocks from the police station.

Can my conversation with Girlfriend be introduced into court? No, it's classic hearsay. Can the police arrest me for not cooperating in the investigation? Probably not; they could try to stretch obstructing justice but that's actually a statute which deals with physical obstruction or active lying. They may get a magistrate to sign off on it but I doubt it survives in front of a judge. However, they can get me in front of that investigating grand jury and cite me for contempt when I refuse to disclose the name of my source.

I think there are multiple reasons why we haven't seen more of these kinds of cases. First, some States have shield laws (I have no idea how many). Second, the press is going to crucify any local prosecutor who goes after a MSM reporter. An elected prosecutor is going to make sure he really needs the information before he goes after the reporter. After all, he already knows who did it; it would probably be easier to crash down on the 27th Street Thugz and get the info. Third, a reporter from the MSM is going to have a well-funded, well-prepared legal team which is going to fight all the way; this would tie up a number of resources the prosecutor badly needs elsewhere.

The second and third of these probably wouldn't apply to most bloggers if a prosecutor came after them. The first might even be a moot point if the blogger didn't have the money for a legal battle to uphold his shield rights. However, I think that most bloggers won't ever have to worry about this. In general, we aren't out developing sources; in fact, the only blog that readily comes to mind as having had sources was probably SL&P during the immediate aftermath of Blakely. There are undoubtedly political blogs that get original material from sources but I can't name any.

Does anyone out there know of a blogger who has been required to reveal a source?

[addendum: SoCalLaw points to a related type of case about a fight between Apple and an internet server in which Apple has tried to force the service provider to give it a blogger's identity.]

2 comments:

SoCal Lawyer said...

Ken,
Great post. Have you heard about the Apple litigation involving a blogger? You can read about it here. In a nutshell, Apple has served a subpoena on a blogger's internet service provider in order to identify a blogger's identity. My lawfirm filed an amicus brief on the case and oral argument should be held soon. Very interesting stuff.

Windypundit said...

Thanks for taking on my question.

So, if you're covered by a journalism shield law, then the grand jury couldn't force you to reveal your source, which would hurt the investigation. But without a shield law, it's doubtful that Girlfriend would speak to you at all. Then, not only wouldn't the police have the name of your source, they wouldn't even have the information you developed about the identity of the killers.

In this sense, a journalism shield law is like an anonymous tip line. Am I naive for thinking this?