Appeals Court Upholds Ruling That Blog Commenter Was Not A Journalist

from the too-bad dept

While lots of attention was paid to the claims that the confiscation of Gizmodo reporter Jason Chen’s computer’s would “settle” whether bloggers are considered journalists, the details in that case suggest otherwise. However, a much more important case on that particular question was decided late last week. It’s the case of Shellee Hale, which we’ve covered in the past. Basically, Hale posted some information claiming a security breach at another company. She revealed this information as a comment on another site — and when she was sued, the company demanded she reveal where she got that information from. She claimed that her sources were protected, as she was a journalist.

The court ruled against her, saying that because she had “no connection to any legitimate news publication,” her own investigations weren’t journalism. That’s troubling for a variety of reasons, especially given the wide latitude in determining what constitutes a “legitimate news publication.” Hale appealed, and unfortunately, the ruling last week from the appeals court upheld the lower court’s ruling:

“Simply put, new media should not be confused with news media,” wrote Superior Court Appellate Judge Anthony J. Parrillo.

The court also claimed that her activities were not journalism because they “exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.”

Again, this is problematic. In an age of participatory journalism, people who do journalism don’t need “an established connection or affiliation with any news entity.” They can easily establish one with various sites, or they can simply set themselves up as a “news organization” on their own. Furthermore, as technology has changed the whole process of journalism, there’s an awful lot about journalism today that “exhibits none of the recognized qualities or characteristics traditionally associated with the news process.” That’s because the news process is constantly changing — such as its expansion into participatory efforts these days. This ruling is troubling in that it looks backwards, not forward. It’s also a reminder that rather than various broken state laws that shield journalists, it really is time for a federal shield law to protect journalists.

Filed Under: , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Appeals Court Upholds Ruling That Blog Commenter Was Not A Journalist”

Subscribe: RSS Leave a comment
64 Comments
Anonymous Coward says:

Re: Re:

This is why we need a process to hold judges accountable to the people. Judges should be elected by the people and they should be forced to run for re – election every so often. This lifetime nonsense doesn’t work. It may have made a bit more sense back in the days when things changed more slowly, but it makes far less sense now.

Anonymous Coward says:

Re: Re: Re:


This is why we need a process to hold judges accountable to the people. Judges should be elected by the people and they should be forced to run for re – election every so often. This lifetime nonsense doesn’t work. It may have made a bit more sense back in the days when things changed more slowly, but it makes far less sense now.

Electing judges just makes them as corrupt as politicians. For an egregious example, take this guy(http://www.nytimes.com/2008/01/15/us/15court.html), the WV chief justice (elected) buddying up with a coal exec, then ruling in favor of the execs company. I wonder how much $ that coal company contributed to the judges campaign?

Mike Masnick (profile) says:

Re: Shield Laws are bad

The Court was unwilling to extend shield laws to cover anyone with a PC and an opinion. Why? Because they are bad. Why should ANYONE be shielded if they defame or if they use stolen information to write a story? Shield Laws must go.

Shield laws are not a defense against defamation or infringement, so your concerns do not apply. They only say whether or not you need to reveal your sources.

Anonymous Coward says:

Re: Comment

Your doctor analogy does not hold. To call oneself a doctor, one must have a doctoral degree in the appropriate field. I cannot call myself a Doctor of Medicine because I do not have a Doctorate of Medicine.

The case becomes more difficult when one calls oneself a journalist. You must realize that there are freelance journalists that do not work for a particular recognized journalistic entity, yet they are journalists not withstanding.

Although Mike is not trained (I believe) as a journalist, but rather as a lawyer and does not work for a big news organization, his postings on this well-known blog clearly constitute journalism. That, I would expect, would qualify him as a journalist. That brings up the real question: What defines a journalistic blog?

Is it the number of readers? I would hope not as that would likely disqualify many smaller, special-interest news journals. Must the owning entity be a recognized newspaper? Again, I would hope not as that would disqualify pretty much ANY new media source becoming a journalistic entity. In my (not so humble) opinion, it would have to be the nature of the articles themselves.

This then challenges your other assertion that if you “critique a movie…” It depends. I’m pretty sure that if your critique consists of “Damn, there’s to much blue in Avatar!”, you’d be correct! But if you’ve written, for a blog, a critique that would be much like those in other accepted journals, then you could be argued to be a movie critic. You might not be Roger Ebert, but that doesn’t mean you aren’t a movie critic.

Anonymous Coward says:

Re: Re: Comment

Hrmmm. Mike’s a bad example because his creds are clearly that of a journalist. But you could use me. I write for several blogs and write of a journalist nature. I don’t work for a recognized news source, but my work can none the less be considered journalism.

Dang, it’s hard to find an unknown example! ๐Ÿ˜Ž

iamtheky (profile) says:

By your reasoning everyone who is sued because of speech or text online should defend themselves as an internet news organization, merely reporting. Like getting caught stalking and declaring yourself a private investigator under employ of yourself.

I might side a bit with established bloggers getting credentials, but those who merely comment should be afforded nothing….bunch of ACs and TAM walking around with press passes sounds nightmarish.

Mike Masnick (profile) says:

Re: Re:

By your reasoning everyone who is sued because of speech or text online should defend themselves as an internet news organization, merely reporting. Like getting caught stalking and declaring yourself a private investigator under employ of yourself.

I believe you may be misunderstanding shield laws. They’re not a “get out of jail free” card that says you can’t pin anything on the person. If you break the law, you still broke the law. They only protect you from having to give up your sources.

Anonymous Coward says:

Re: Re: Re:

in the end it is a double edged sword. in theory a journalist can make stuff up, claim an anonymous or confidential source, and never have to give that non-existent person up. it is actually the risk in this case as there is a chance that ms hale has no source at all. so at what point is it not a get out of jail free card?

Jon B. (profile) says:

Re: Re: Re: Re:

Either way, the reasoning in this case is retarded.

There are legitimate reasons a journalist can be forced to give up a source. (The right to free press balanced against another individuals rights, etc.) Could the judge have used that reasoning in this case without trying to redefine journalism?

The reporter was making a comment on someone else’s website. Could the judge have just said that the reporter wasn’t acting as a journalist at the time?

You don’t have to give everyone get-out-of-jail-free cards to still allow bloggers to claim freedom of the press.

Anonymous of Course says:

Control is the thing

It’s all a matter of what your definition of news
is. When news is the offical line and the daily
press release then the judges are corrent.

Established news outlets can be more easily
controlled.

Shield laws as they’ve been twisted and distorted
are doing more to protect the government and ngo
dissemblers than whistle blowers.

Special Case says:

Re: Re:

She is not asking for any “special protection” here as an individual. Rather she is asserting her right to a free press accorded by the First Amendment, as a member of “the press”. These are two different things, but I can understand where it might get confusing. Depending on what someone is doing, they might wear a different “hat” and that “hat” determines what rights and responsibilities apply. Every citizen has the right to be heard and to speak freely regardless of occupation, race, creed or color. Now, in certain occupations, such as those in the press or clergy, special First Amendment protections are given to those acting in that capacity, not as individuals.

The issue that concerns me about this ruling, and the Federal Courts (preferably the Supreme Court) is that a clear definition needs to be made regarding what actually constitutes bona-fide journalism and therefore entitled to First Amendment press protection (and not just individual speech protection) and what constitutes non-journalism. The courts should not rest their decision on such legal flourishes as “exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.” Please define these “recognized qualities or characteristics”.

Keep in mind that this is a state-level court ruling, and could (and most likely will) be appealed to the federal level. Some states, such as California, have stronger free-press protections that go beyond those provided at the Federal level. So until the Federal courts have spoken, this ruling will have little real effect, but that does not diminish the chill.

McBeese says:

New versus old media should be irrelevant

I too am worried by this ruling. I worry that the country is overloaded with judges and politicians who are generally out of touch with the social Internet. How can one expect a quality ruling from judges who are unclear on the concept? It’s like going to a priest for marriage counseling.

As for the specifics of the point of discussion, perhaps the concept of registered and unregistered journalists would be useful. To become ‘registered’, you would simply identify yourself and declare that you have read and understand a set of basic guidelines and laws that apply to journalists (i.e., shield protection). Registered journalists would be afforded the protections that are available today and unregistered journalists would be on their own. You could even make the ‘registry’ a value-added function by allowing registering journalists to include their specialty, links to reference work, etc. so that it becomes kind of like a specialized LinkedIn resource.

I don’t know… just trying to think of an easy way to solve this.

Rachel Shaw says:

I worked as a contract designer for Ms Hale on the website that the prosecutor is claiming is fictitious. I know the whole situation. They said because it wasn’t up yet there is no evidence and would not allow me to submit proof that I had. Shellee is a brilliant woman and an incredible investigator and works to solve missing-persons cases and with NGO’s and this is an injustice of epic proportions.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop ยป