Monday, February 25, 2008

Bloggers' Editorial Judgment Comes Before Shields

Obviously, we think blogs are important.

We wouldn’t devote this much time and energy to our little corner of the digital world if we thought otherwise.

Blogs increase understanding, encourage conversation and contribute to the democratic principles. Most of all, as news organizations have cut back on their reporting staffs and have come to avoid complex coverage, bloggers often fill in the gaps.


At least that’s our view of the best of them, and we suspect that opinion is shared by the tens of millions of other people who take the time to regularly post their opinions on a range of subjects that seem to defy human imagination.

Despite this opinions, we still think that it’s too early to say that the laws that protect media reporters also apply to bloggers.

We know that journalism embraces a range of publications that run the gamut from the New York Times to the National Enquirer. As a result, it also runs the gamut of the highly respected to the gossipy, so it’s not the caliber of professionalism that becomes the basis for the legal dividing line.

We’re Not Saying

That said, there’s just too many remaining practical and legal questions to suggest that we deserve the special government protection given to journalists.

This isn’t to say that many of us aren’t just as serious about what we write or as sincere in our commitment to illuminate important issues as reporters for the mainstream media.

This isn’t to say that many of us aren’t sharing critical information about public issues.

The Reader’s Lens

It’s just to say that special government protection seems premature and imprecise.

After all, shield laws for journalists were not enacted simply because reporters are serious and informative. More to the point, they are anchored in the premise that there are shared values and special training that form the basis for reporting and editorializing.

Of course, we’re not saying that there are not some glaring exceptions, but overall, when we read a news story, all of us read them through a common lens – one based on a presumption that some general professional principles are being followed – objectivity, two sides of an issue and the pursuit of accuracy.
In addition, when we read or see a news account, we also know, or can easily determine, the organization behind it – notably, who owns it, who pays for it and who vouches for the people who write for it.

Clearing The Hurdle

It’s the lack of this general code of professional behavior that’s the biggest obstacle to bloggers being covered by shield laws for journalists.

All of this isn’t based just on the philosophical issues being debated in light of the announced investigation of a leak of a non-public Memphis Police Department document to a local blogger. It’s the practical dimensions of this issue that seem most relevant.

At a time when every teenage boy can crank up a blog to rant about his favorite subject or to degrade his latest scapegoat, it’s just hard for us to suggest that every blogger deserves legal protection? Heck, if this is the case, every one in American should sign up this afternoon on blogspot, because it is their protection for saying anything they want to say about someone else. It is the trump card for libel and defamation.

Shifting The Burden

That’s because extending shield laws to bloggers automatically shifts the legal burden to the aggrieved party to prove malice and willful disregard of the truth, a higher bar.

Of course, these days, journalists for mainstream media aren’t particularly secure in their protection any way. In recent weeks, a state judge has ordered a reporter to reveal his sources or go to jail and another court in another state has softened the shield law protection for a reporter with information investigators want.

Perhaps, bloggers may eventually deserve legal protection, but it seems to us that it would be predicated on some editorial judgment and a professional framework that guides the publishing of the information. Right now, it’s about as scientific in its definition as pornography: We’ll know it when we see it.

Two Worlds

At this point, it feels like bloggers have one foot in two worlds. On one hand, we are having conversations, while on the other side, we want to be citizen journalists. Because of this bipolar personality, bloggers often want the protection of shield laws as a journalist while they don’t want the bother of fact checking because “it’s only a blog.”

The days when bloggers were lonely commentators writing personal essays about everything from their dogs to their cities is over. Now, blogs are influential, relied on by public officials and quoted in the mainstream media. By and large, they are heavy on opinions and light on facts, reflecting a fact of life of the blogosphere itself.

One thing is inarguable: It is indeed a brave new world, and on one thing all bloggers can agree: there’s nothing quite as exciting as exploring it, because at this point, essentially anything goes, and we can make our own rules.

The 5th Estate

Because of it, it seems to us that rather than trying to fit uncomfortably as part of the Fourth Estate, perhaps the better course would be to determine how we create the boundaries, conditions and criteria for a Fifth Estate of our own.


gatesofmemphis said...

Tennessee law, which protects both employed and independent gatherers of news for publication (and therefore I would think bloggers who do that), provides an exception for defamation. The shield for publication info gathering "shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information."

It seems a reasonable way to protect the acts of a dynamic free press, while preventing them from becoming safe havens for private vendettas.

bob said...

SCM, whether you feel you "deserve" it or not, under Tennessee law a blogger such as yourself is, with all but absolute certainty, covered. No editorial judgement is required.

That might not be true in other states. My point being: Your statements and opinions, even if I agreed with all of them, are meaningless unless qualified by declaring which state law you are referring to. As it happens, practically none of what you said is true in Tennessee. Read my post.

That said, there’s just too many remaining practical and legal questions to suggest that we deserve the special government protection given to journalists...

The press must "deserve" (earn?) special protection "given" by the government?

Exactly the kind of thinking that got us into war and keeps us there, justifies the government secretely wiretapping us, and a host of other things.

b said...

Here's a classic example of why there should be rules:

b said...

Sorry... bad link:

Michael Roy Hollihan said...

Tennessee's shield law applies to everyone in Tennessee equally. That's good enough for me. Journalists don't need a special protection for speech that would be denied to the rest of us.

Journalism is, after all, just free speech done for a paycheck.

Libel and defamation law cover the problems well enough. Credibility and reputation take care of the rest.

Anonymous said...

You guys just aren't reporters. Get over yourself. Quit inflating what you do.

Smart City Consulting said...

We hate to break solidarity with our comrades. We've done both daily news reporting and daily blogging. They're just not the same, nor should they be.

In fact, we think that when we bloggers try to wedge ourselves into the round hole occupied by the square media, we do ourselves a disservice. We think that standards characterize journalists and other professions. We vote for all of us who are serious about our blogs to set those standards and adhere to them, giving readers expectations similar to those they have when they read mainstream media.

There's great value in blogging, and in performing that role, we see no serious need for a shield law. It's essentially trying to shove old media rules onto a dynamic new media whose history shows that it writes its own rules.

The exploitation and tittilation that lies at the heart of the case that sparked the current discussion here have about as much relevance to journalism as John Stewart does to Tim Russert. We repeat our point: it's too early to make this call.

As for defamation, we know there is no protection for it, but when a blogger is relying on the protection of sources or insider information, the reality between what the law says and what takes place in the real world are miles apart.

Bob, we're used to your leaps of rhetoric, but the notion that all of the news media were responsible for the war and that somehow is the basis for protection of bloggers doesn't click with us. While the NY Times was duped to a degree that should embarrass it for a generation, there were media outlets actually asking the tough questions and reporting critically.

Also, we do believe that 200 years of history indicates the importance of the media and speaks to how it has earned its special protection. Blogging just isn't there yet. It will get there eventually, but it won't be on the back of existing laws.

Smart City Consulting said...

By the way, anonymous, we don't think we have to inflate what we do. We think what we are doing is important.

Anonymous said...

Maybe you guys are like the media. You talk on and on about things like this that the rest of us don't give a damn about.

Anonymous said...

"Journalism is, after all, just free speech done for a paycheck." That's what Michael Roy Hollihan says. What a totally ludicrous statement. It not free speech done for a paycheck. It's free speech that we do within a framework of ethical standards, training and transparency. How in the hell do bloggers even come close to this?

If our editorial writers want to defend the likes of Thaddeus Matthews, why don't they just defend the rights of people like him to yell fire in a crowded movie house. There's a difference between journalism and exploitation. There's a difference between journalistic canons and unbridged ego need. There's a difference between contributing to a stronger city and contributing to division and hate. There's a difference in being a reporter and a disc jockey. There's a difference between facts and gossip.

Freedom of Speech allows it. There's no room to think that Freedom of the Press applies as well.

Anonymous said...

You're wandering off into the weeds. It's not really about defamation although Thad does that daily. It's about facts, and the presumption that they are being checked or that some level of verification is going into the blogs. We can't make that presumption now although every one who's commented here are exceptions.

Anonymous said...
This comment has been removed by a blog administrator.
Smart City Consulting said...

The deleted comment dealt with the personal life of the blogger whose post precipitated this discussion, so it was removed.