Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, December 29, 2011

Bloggers Held Not To Be Journalists

Obisdian Finance Group v. Fox, ____F.Supp.2d____ (D. Or. Nov. 30, 2011), is an important case for us bloggers. Oregon has a statute which limits defamation damages unless a plaintiff first requests a retraction. The court held, however, that a internet blogger, was not protected under that statute and therefore, could not rely on that defense. The court also held that a blogger was not protected under that state's shield law which privileged journalists from revealing their sources. 

It is hard to find fault with the court's decision. It was based purely on statutory interpretation. Though blogging is similar to other journalist type activities, it is different. The medium is different (internet) and you do not have to sell your story; rather you just put it out there. There are no professional organizations, educational degrees or regulations which govern blogging. In short, it is different. Perhaps this case will trigger legislation throughout the several states.

Mitchell H. Rubinstein

Blogs, Faculty, Blogs, General, Blogs, Legal | Permalink


"There are no professional organizations, educational degrees or regulations which govern blogging."

Nor, other than the First Amendment of the Constitution of the United States, are there for journalism. That's kinda the point of the damn thing.

-- MrJM

Posted by: MrJM | Dec 29, 2011 8:31:11 PM

Journalism is a major at many colleges; there are professional organizations and standards. Blogging is ad hoc. I might agree that bloggers are entitled to the same First A protection as other writers, but that does not mean that bloggers are the same thing as journalists for all purposes. What was at issue was a specific statute with specific statutory language. Legislative relief is needed to clarify the protections that we bloggers have or don't have.
Mitchell H. Rubinstein

Posted by: Mitchell Rubinstein | Dec 30, 2011 11:50:13 AM

Writers need not be members of professional organizations, have journalism degrees, or subscribe to any particular code of ethics to be journalists for tree-pulp or on-line newspapers. Many happen to do those things, but plenty -- of what you would call traditional "journalists" -- do not.

Now what?

Posted by: Rich | Dec 30, 2011 11:57:20 AM

I should add: None of the things you mention in any real sense "govern" journalism. That's certainly true in comparison to lawyers and doctors, who must have licenses and are actually "governed" by their codes of ethics and professional organizations inasmuch as lawyers and doctors may be disciplined.

Posted by: Rich | Dec 30, 2011 12:00:34 PM

With all due respect, the Court is completely mistaken in this ruling.

First, there is no "profession" or "guild" of journalists. There is no analogy whatsoever between journalism, on the one hand, and lawyers/doctors/architects and other professionals on the other, all of whom have to take qualifying examinations and HAVE TO KEEP TAKING QUALIFYING EXAMINATIONS ALL THEIR PROFESSIONAL LIVES in order to stay on the job.

Second, writing is writing, reporting is reporting, and the first amendment makes no distinction whatsoever between speech and the profession of journalism--it simply says that Congress shall make no law respecting the freedom of SPEECH. Now that is the extreme view of Justice Black, but consider--does the First Amendment limit Free Speech to professionally certified journalists who have degrees from Harvard, Yale, Columbia and who write for the NY Times? I think not. What this decision does, almost certainly, is limit freedom of speech and curtail it sharply.

Third, it exposes those who would express themselves freely, whether as journalists, news reporters or online independent news reporters UNAFFILIATED WITH A MAJOR NEWS ORGANIZATION to SLAP SUITS, LIBEL SUITS AND THE THREAT OF LITIGATION. In short, it makes the average individual have to worry about banding up with a news organization, getting umbrella liability coverage, and getting a first amendment law firm, along with coverage, the same as a newspaper.

That effectively is a restraint of speech--the very same restraints of speech that were meant to be loosened, if you recall, by NYT v. Sullivan (1964), which was intended to loosen the freedom of speech of all commentators from the threat of libel suits by southern racist politicians.

This ruling effectively ratchets us back to the 1950s and does not allow anyone except those with expensive insurance and expensive first amendment lawyers to comment on political events.

Note that this was NOT THE INTENT OF THE FOUNDERS, since in 1776 there were numerous independent newspapers and pamphlets--the equivalent of todays bloggers--and that these, not the mainstream press, were what primarily influenced the revolution and the Founders, as was noted by BERNARD BAILYN'S influential study many years ago.

Likewise, it is clear that BLOGGING, NOT THE NEWS, DRIVES THE MAINSTREAM TODAY. The news and tv are on the verge of extinction.

The issue is freedom of speech, not the professionalism or guilding of the press. Whether there is a National Press Club or not is utterly irrelevant to the dimensions and breadth of the First Amendment, and the extent and breadth of the coverage of the shield laws extended to those who would speak upon public matters.

Anyone who would comment publicly on public matters is, in effect, a journalist, the moment they set paper to pen.

To say otherwise is not only silly, but an abrogation of everything America and the First Amendment has ever stood for.

There is no journalism major in any of the undergraduate departments of the Ivy League and we made fun of Sarah Palin for majoring in Journalism as an undergrad at State School.

Now you hail a Court for erecting this into First Amendment doctrine???

Are you kidding???

The Harvard Crimson and the Yale Daily News are EXTRACURRICULAR ACTIVITIES. They are not professional majors. Students major in Government or Economics; they are expected to know how to WRITE when they leave school. Journalism is just writing. That's all it is.

Most of the successful journalists I know, like Jeff Toobin or George Stephanopoulos, were never trained as journalists. There were lawyers or political operatives, as you all well know.

It is merely the fact of their employment by LARGE MEDIA CONCERNS that you now cite them as journalists, and that fact alone.

Otherwise, they are simply engaged in SPEECH. Toobin and Steph have no special certifications of any kind as journalists whatsoever. Nor do Gergen or any other number of talking heads, and the main qualification of most TV "journalists" is that they are good looking, not that they have degrees or are guilded, smart or certified.

This is a silly conclusion.

Art Kyriazis

Posted by: art kyriazis | Jul 11, 2012 3:56:11 AM

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