In the age of new media, who counts as a journalist?

From the Winter 2011 issue of The News Media & The Law, page 27.

Avi Adelman considers himself a journalist.

He has blogged for 12 years about the proximity of restaurants and bars to his neighborhood in the lower Greenville Avenue area of east Dallas.

He posts entries to his blog, BarkingDogs.org, about once per week. The blog has about 1,200 subscribers and the Dallas Observer often picks up his pictures.

The 55-year-old Adelman is no stranger to waking up at 3 a.m. to cover a shooting two blocks from his house, talk to witnesses, upload the story and hop back into bed 45 minutes later.

But according to some, the neighborhood gadfly is no journalist.

As part of ongoing litigation between a landlord and its tenant, Lost Society, a bar near Adelman’s house, the bar’s owner subpoenaed Adelman to testify in a deposition about the identities of anonymous sources quoted in a blog post about a shooting near the bar last summer.

Adelman refused to give up the sources and invoked the Texas shield law.

During the proceeding on Nov. 11, the bar owner’s attorney, Armando Miranda, had Adelman read the Texas shield law, which requires that journalists be paid to be covered by the law. Miranda asked Adelman how he could consider himself a journalist under the state’s definition.

Revisiting the definition of journalist

This tangled question of who is a journalist is also raised in a New Jersey Supreme Court case, Too Much Media v. Hale.

In March, the New Jersey Supreme Court will examine the state’s shield law to analyze how a blogger fits the requirement of being “engaged in, connected with, or employed by news media” for the purposes of disseminating information to the public.

Shellee Hale, a Washington state blogger who also describes herself as a life coach and owner of a private investigation firm, launched the website Pornafia in October 2007 to investigate the adult entertainment industry. Hale hoped to use the website to “inform the public on scams, fraud, [and] technological issues,” in the pornography industry, she said in a 2008 press release touting the website. However, apart from the press release, the website was never fully launched and had no contributing writers.

Hale said she was gathering information for a book on corruption in the porn industry, which is also titled “Pornafia.”

In addition to reviewing porn industry Web pages, attending trade shows and interviewing industry affiliates, Hale commented on the message board at the website Oprano, which describes itself as the “Wall Street Journal of the Porn Industry.”

In her comments, Hale made numerous allegations against Too Much Media pertaining to a 2007 security breach at the company.

Too Much Media is a manufacturer of tracking software for websites, mainly in the adult entertainment industry. Citing confidential sources, Hale alleged that the owners of the company had threatened the life of one of her sources and alleged they had participated in fraudulent, unethical behavior.

The software company sued Hale for defamation and false light. During discovery, the company sought Hale’s sources, which she refused to give up, invoking a reporter’s privilege under the New Jersey shield law. A trial judge ruled that Hale was not a member of the news media and couldn’t invoke the privilege, which a panel of the Appellate Division of the Superior Court of New Jersey affirmed.

In a 47-page opinion, the appeals court focused on the intent behind the newsgathering process, rather than its medium of expression, and drafted its own criteria of what activities indicate an intent to gather news sufficient to entitle a particular person to shield law protections.

In examining whether Hale could rely on the shield law, the appellate division relied heavily upon the test in von Bulow v. von Bulow, a 1987 case from the U.S. Court of Appeals in New York (2nd Cir.) that has become the standard for evaluating claims of eligibility to a reporter’s privilege. In von Bulow, the court emphasized the intent or purpose to disseminate information to the public during newsgathering, versus the medium of doing so.

“What makes journalism journalism is not its format but its content,” a judge from the U.S. Court of Appeals in San Francisco (9th Cir.) said in a similar case, Shoen v. Shoen, which invoked the von Bulow test.

Given the case’s unusual facts, it may be an “outlier” in reporter’s privilege jurisprudence in the Second Circuit and elsewhere, Best said.

The New Jersey appellate court accepted the trial court’s characterization of Hale’s press release describing her purpose for the website as merely a “self-serving statement” supported by little evidence about her intent to disseminate any information to the public.

The opinion also differentiated between “personal diaries, opinions, impressions and expressive writing,” and “news reporting.”

“Simply put, new media should not be confused with news media,” the appeals court said, emphasizing the distinction between the two.

The court included in its opinion several indicia of whether someone has the intent to gather and disseminate information and, thus, qualify as a journalist. Media associations have taken issue with many of the elements. The court ruled Hale had not demonstrated any credentials or affiliation with a news organization; had no adherence to professional journalistic standards, such as fact-checking, editing or disclosure of conflicts of interests; retained no notes of conversations; had no actual published material on her website; had reached no understanding with a source that she was a journalist; and did not get a comment from Too Much Media about the accuracy of the allegations.

The court also said that Hale made no editorial contribution to Oprano.com by commenting. Because Hale never exhibited any of the court’s traits associated with journalism, she could not demonstrate an intent, at the time of newsgathering, to publicly disseminate information and, thus, was not entitled to rely on the protections of the shield law, the court ruled.

“It is not enough to simply self-proclaim oneself a journalist,” the court wrote.

Bruce Rosen, a media lawyer who wrote a friend-of-the-court brief in the case, said the appellate division’s guidelines undermine journalism and present an arcane view of the profession.

“The roadmap they created for judges to determine who a journalist is by those benchmarks . . . I found that the most disturbing,” Rosen said. “It really sloppies up the shield law.”

There’s no requirement in the New Jersey shield law that journalists be members of established organizations, check facts, promise a source anonymity or get both sides of the story, Rosen wrote in his brief.

He said the New Jersey Supreme Court must be wary of these stipulations because future courts could take them literally.

Jeffrey Pollock, Hale’s attorney, also said he has a problem with the court’s additional criteria that aren’t included in the New Jersey statute.

“The newsperson’s privilege is to be read broadly, not narrowly,” Pollock said. “The effect of the appellate division’s rewriting of the statute effectively changes the whole tenor of this discussion and adds additional criteria so basically now very few people will qualify.”

There must be a fairness aspect, as well as concrete guidelines, in order to establish who’s part of the media, said Joel Kreizman, the attorney for Too Much Media.

“If not, you just say that anyone and everyone is entitled to the shield law benefit. And the statute doesn’t say that. It only says members of the media are, and that has to be somehow defined,” Kreizman said.

Pollock said Kreizman brought up during oral arguments before the appellate court the fact that his daughter has a blog and asked if she should be protected. Pollock said no, stating that she never stated a purpose up front, doesn’t have public interest and fails the von Bulow test, unlike Hale.

“Shellee does meet the elements of the statute,” Pollock said. “Then it becomes: Is what she wrote reporting and is what she wrote news, and I think that’s where the court is going to have a big issue.”

Eugene Volokh, a law professor at UCLA and a blogger, said the real question for the courts to decide is not whether Hale is a journalist, but whether she is engaged, connected with or employed by the news media, as the statute stipulates.

He said in this case, a blogger is similar to a newspaper publisher or editor, while a commenter is more similar to a letter-to-the-editor writer, which would not qualify because the person isn’t employed by the news media.

More recently, the same court that decided von Bulow found that a documentary filmmaker did not adequately prove he was a journalist entitled to invoke First Amendment-based reporter’s privilege.

In that case, Chevron Corp. v. Berlinger, Joseph Berlinger refused to turn over the unused footage from his movie “Crude: The Real Price of Oil,” which chronicled the lives of Ecuadorians who sued Texaco (now owned by Chevron Corp.) over alleged pollution of the country’s rainforest. The oil giant had subpoenaed Berlinger for 600 hours of outtakes, claiming it needed the footage as evidence in three ongoing legal disputes over the company’s drilling operations in Lago Agrio, Ecuador.

In holding that Berlinger was not entitled to withhold the outtakes, the Second Circuit in January read into von Bulow an “independence,” as well as intent, requirement, noting that Berlinger failed to prove “he collected information for the purpose of independent reporting and commentary.” (The emphasis is in the opinion.)

In so finding, the appellate court relied on the lower court’s ruling that Berlinger was “solicited” by Stephen Donziger, the legal adviser to the Lago Agrio plaintiffs, to produce the film to serve the objectives of the litigants. The trial court ruling also noted that Berlinger removed at least one scene from the film at the request of the Lago Agrio plaintiffs.

The appellate court said that a journalist solicited to investigate and publish a story supporting the viewpoint of his or her employer can still be protected under the privilege by establishing journalistic independence through evidence of editorial and financial independence.

It found, however, that not only had the oil company made a showing that Berlinger was not independent, he had also failed to counter that in a manner convincing to the trial judge. The appellate court also found that the trial court “was not obliged to credit [Berlinger’s] self-serving testimony” about his own independence as a filmmaker.

“The court did strongly reaffirm the reporter’s privilege, but it also emphasized the role of the independence of the journalist, which, in my opinion, seems to open up a level of uncertainty or a new element that may have to be litigated,” Landis C. Best, a New York City media attorney who represented several media parties that filed a friend-of-the-court brief in the case, said.

Other blogger cases

As technology has transformed communications and become inexpensive and user-friendly, anyone can share his or her views with the world, putting them almost on the same playing field as traditional journalists, said Scott Gant, author of the book, “We’re All Journalists Now.”

In order to allocate rights and privileges, courts are being asked to form judgments on who is a journalist, he said.

“The law hasn’t caught up with the technology,” Gant said. “So that’s where you have a problem. The courts are not accustomed to adjusting the way they used to think about journalists, which is established news organizations.”

Gant predicts that, in the next decade, courts will be forced to confront this issue and make a decision on where to draw the line. The question is: What types of guidelines will, or should, be formed?

The New Hampshire Supreme Court addressed the issue and found last May that a website publisher could invoke the reporter’s privilege.

The website Implode-o-Meter, which covers the mortgage industry, published an article detailing how the New Hampshire Banking Authority was investigating lending company The Mortgage Specialists.

The website included a state document about the investigation obtained from an anonymous source.

The company ordered the removal of the document and sought the disclosure of the confidential source. The New Hampshire Supreme Court ruled the website’s sources were protected by the state’s constitution, stating that because the website is a “legitimate publisher of information,” it is covered by the reporter’s privilege.

“The fact that Implode operates a website makes it no less a member of the press . . . Implode’s website serves an informative function and contributes to the flow of information to the public,” the opinion read.

Similarly, a California appeals court also ruled in favor of a website as a legitimate news entity in O’Grady v. Superior Court in 2006. The case is one of the few state decisions extending shield law protections to new media, namely bloggers.

In 2004, Jason O’Grady, owner and operator of the website O’Grady’s PowerPage, an online newsmagazine, posted articles about a soon-to-be-released Apple product called the Asteroid. Apple sued for trade secret infringement and subpoenaed O’Grady for the sources who leaked the top secret information to him. While a lower court allowed the issuance of the subpoenas, the California Court of Appeal (6th Dist.) unanimously ruled O’Grady was protected under California’s shield law.

The state’s shield law, one of the strongest in the country, protects those connected with a “newspaper, magazine, or other periodical.”

The court determined O’Grady’s PowerPage qualified as a magazine and was, therefore, covered.

“Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors’ own ‘spin’ on a story,” the opinion said.

Defining journalism

The issue of who counts as a journalist gets stickier as the number of blog operators climbs to 150 million, according to the 2010 State of the Blogosphere report, released by BlogPulse, a website that tracks blogs.

Robert Cox, the co-founder and president of the Media Bloggers Association, of which Hale is a member, remembers how it was much easier to draw the line back in 2003 between someone ranting and raving online versus a blogger with a serious journalistic bent because blogs were so new.

Cox claims he was one of the first bloggers involved in a legal scuffle. Cox noticed The New York Times’ op-ed page did not publish corrections. His remedy: a satirical black and white website designed like the Times, containing columns with corrections written by Cox. Times lawyers objected to the site on copyright and trademark grounds.

With the influx of blogs from The Huffington Post, Politico, The New York Times, Gawker and others, the line is now less distinct, Cox said.

“It can make your head spin,” Cox said. “That’s where it gets messy to me because if you’re sitting in the middle of this and saying OK, here’s a set of rules we’re going to make about what makes you legitimate or not, you get protection from the law or you don’t. I don’t think the courts should be involved in deciding what legitimate media is.”

Neither does Adelman, the Dallas-based blogger. He said courts are having trouble dealing with this new era of journalism.

“The whole crux is a blogger to me is no different than Ben Franklin or Thomas Paine publishing their broadsides,” Adelman said.

“This is just a new version of journalism, and that’s what the lawyers are having a problem with, because they think you need a paycheck or a press pass or a moniker on your hat that says ‘The News.’”

The government should not determine who can invoke the shield law on the basis of the applicant’s qualifications — if they’re full time, have a journalism degree, are paid and such, said Gant, the author of “We’re All Journalists Now.”

In 2010, Kansas and Wisconsin enacted shield laws, bringing the number of U.S. states that have done so to 39. The Kansas statute defined a journalist to include online journal publishers; the Wisconsin statute took a broader definition, protecting “news persons” working in any medium.

But Cox said the states should not have definitions of a journalist or shield laws.

“It’s often written almost like a traditional media affirmative action program where all these protections accrue, but only if you work at The Washington Post or The New York Times,” Cox said. “It’s not really being applied to people who do what I do.

“The real question is: What difference does it make? The only reason it makes a difference is because some people are asking for some special protection.”

While one could make arguments for defining journalism broadly or narrowly, Volokh veers toward a broader definition.

“My inclination is probably journalists should be defined quite broadly because journalism these days and the communication of news is done by so many, some of them non-professional and some of them professional,” he said.

Hale said she has a strong case that she’s a journalist: Her intent was made clear in her press release; she kept notes, like other journalists; she went undercover to research a story; and the comment section is an extension of the original article, adding more color and news, she said.

“I feel like I can’t lose,” Hale said. “Even though the court may rule against me, I just feel like I can’t lose because I know my source is credible, I know that the stuff I wrote I believed with every fiber of my being. I fact-checked it and it’s true.”

For now, Hale is more focused on her 16-hour work days than worrying about the case. But her main concern is keeping her sources confidential.

Rosen said Hale’s case is not the one that will set a precedent to determine who’s a journalist.

“This is a terrible case to decide these issues,” he said. “It’s just so unclear, because there’s credibility determinations that the judges made about her intent and what she’s being sued on are things she wrote on a bulletin board and you have no idea whether they’re connected to her reporting. So it’s just a bad case to decide such an important issue of who’s a journalist.”

To Adelman, the old model of a journalist “with a green eye shade . . . calling a guy with a cigar in my mouth” no longer exists.

“What the new model is, I’m not sure. But I do know that people like me who put up the effort to put up a website, try to do it properly and have proper grammar, that’s a good starting point,” Adelman said. “There’s going to be a long discussion of what a journalist is.”