Citizen Journalism and the Media Shield

Wednesday, November 14, 2012, by Kenneth Jennings

In a world where the definition of journalism is changing, the traditional legal protections enjoyed by journalists have come into question.   Media shield laws, which have been adopted in a majority of jurisdictions for decades, facilitate journalistic truth-seeking by protecting the identities of confidential sources.  Such laws pair with Supreme Court precedent that requires a heightened burden for plaintiffs to recover on defamation claims against journalists.  Should the intrepid reporters of the blogosphere enjoy the same protections? 

Last year, in a well-publicized Oregon case, a jury found self-described investigative blogger Crystal Cox guilty of defamation, levying a staggering 2.5 million dollar judgment against her.  That case is now set to be heard by the 9th Circuit, and has attracted Amicus Briefs by both the Reporters Committee for Freedom of the Press, and Scotusblog.com (a site covering U.S. Supreme Court cases in detail).

“What makes journalism journalism is not its format but its content.” –Reporters Committee for Freedom of the Press

The case turned on two key issues: (1) whether an individual blogger such as Cox can falls under the traditional definition of a “journalist,” thus providing her protection under Oregon’s media shield law, and (2) whether the use of the media shield was appropriate where Cox claimed the existence of ‘classified source,’ in order to sustain a defense that the remarks on her blog could not be used in litigation for the purposes of establishing damages.  While it is clear that the answer to issue (2) is a resounding no (see Oregon media shield law prohibiting the use of the statute as a ‘sword and shield’), the amici sound concerns specific to issue (1).

Problematically, the amici argue, the District Judge included language in his opinion that focused on the Oregon statute’s list of traditional media forms (which do not include blogs), and stated that as a blogger Cox was objectively not a part of the media.  The Judge has since clarified that specific circumstances in this case warranted such a classification:

In my discussion, I did not state that a person who “blogs” could never be considered “media.” I also did not state that to be considered “media,” one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the “media.”

In their brief, the Reporters Committee argues that media protection laws extend to journalists regardless of medium: “What makes journalism journalism is not its format but its content.”  Scotusblog.com makes a similar, but slightly distinguishable argument.  Namely, that the 9th Circuit should take this opportunity to explicitly add alternative useful sources of information, including legitimate blogs like Scotusblog, to the list of media protected.

The outcome of the case will shed additional light on the status of media protection laws, and the legal status the modern citizen journalist.