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Remember Comms 101?
Possibly not, but somewhere in those hazy early-undergraduate days you may have first heard the magic words: shield law. You like shield laws. Shield laws are what are passed when heroic, lucky journalists are locked up for refusing to reveal their confidential sources, later emerging with book deals and talk show appearances after their triumphant release from minimum security. Sometimes shield laws can protect a journalist from revealing sources, from being sued for defamation, or even, in some cases, from responding to a judicial subpoena.
Who qualifies as a journalist?
The problem is this thing called the “internet.” You may have noticed your friends aren’t exactly picking the morning paper up off the driveway anymore (the ink gets on your fingers). In a polycentric media world where readers access content from countless online sources, it’s getting harder to create bright-line definitions for terms like “journalist” and “journalism”. Your blog post can get thousands of hits, but most courts will judge your journalistic status by the same criteria they would have applied to Bob Woodward back in 1972.
Safe = traditional
Despite what you may have heard about “activist judges,” state and federal courts are notoriously averse to change. Judges will often go to great lengths to avoid deviating – or appearing to deviate – from the precedent set by past decisions. In general, the farther a judge steps outside the lines of precedent the more likely she is to see her decision overturned on appeal.
Thus, journalistic safety and privilege is greater for the blogger who can conform to the traditional standard of what constitutes a journalist. In last year’s watershed Obsidian Finance Group, LLC v. Cox (2011 WL 2745849 [D. Or. July 7, 2011]), federal district court judge Marco A. Hernandez laid out three main qualifications for a bona fide journalist with elevated protections from state and federal law:
- Affiliation with traditional media outlet (e.g., newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system);
- Journalistic integrity, including fact-checking and “fair coverage” (i.e., the willingness to publish two opposing viewpoints); and
- Original Content (i.e., the writer composes new material rather than merely copying, or providing links to, other sources)
Safe = Public figure, public concern
In First Amendment cases, the U.S. Constitution is interpreted as protecting mainly those who write about public figures and/or those who write about matters of “public concern.” Law enforcement officials demanding sources or tort plaintiffs demanding damages can face a higher evidentiary burden if the piece is about a politician or a celebrity, if the piece is about a subject of general interest, if the author is writing for a traditional news outlet, or any combination of the three.
If that’s not you, this attorney says “Beware.” It’s still your grandpa’s Federal District Court.
Frank Morgan is a practicing New York attorney specializing in tort litigation, intellectual property, and contract matters.