Taking Bloggers Seriously

Is a blogger a journalist? In Oregon, apparently not. On November 30, 2011, Judge Marco Hernandez of the U.S. District Court for the District of Oregon ruled that Crystal Cox, “a self-proclaimed ‘investigative blogger’” was not entitled to the protection of Oregon’s journalist shield laws.

Cox wrote a series of posts on her blog in which she alleged that an Oregon investment firm, Obsidian Finance Group, engaged in fraud. She obtained some information about Obsidian from a confidenrtial source and posted this information on her website. Obsidian sued Cox for defamation and demanded to know who provided her with the information. Cox claimed she could not be liable for defamation and that her sources were entitled to protection under Oregon’s shield laws.

Whoa there, said Judge Hernandez.

A blogger without professional credentials is not a journalist. “[T]he record fails to show that [Cox] is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.” (Then again, even if she were entitled to the protections of Oregon’s shield law, the law doesn’t apply to civil defamation claims.)

Normally, the definition of journalism wouldn’t be an issue; outside the courtroom, journalism is as journalism does. But in this case, and other cases around the country, only state-proclaimed journalists get the benefit of laws protecting journalists from being compelled to divulge their sources.

Oregon passed its shield law in 1973, shortly after a particularly explosive episode of anonymous sources in our nation’s history. The law protects all the types of things that we would expect to qualify as journalism — in 1973.

The catalogue of things that Cox is not is the statute’s non-exhaustive list of activities that qualify as a “medium of communication” entitled to protection under the shield law. Under the canon of statutory interpretation called ejusdem generis (“of the same kind”), unmentioned members of a non-exhaustive list must be of the same kind as the mentioned members in order to fall within the scope of the list. So, is a blog like a newspaper or magazine? Or a book or pamphlet? Or does it fall within the ordinary meaning of “medium of communication”?

Instead of resorting to statutory interpretation, perhaps Oregon’s statute needs to enter the twenty-first century. Like the printing press before it, the Internet has decentralized communication. In 2011, journalists don’t have to be credentialed in order to conduct important journalistic work. The notion that a “journalist” must belong to a wire service or be employed by a newspaper should be considered quaint.

Bloggers can — and do — perform serious journalistic functions. They’re not just wannabes or flunkies out of J-school.  This country needs to start taking investigative journalism seriously again. One way to start is by giving independent journalists, who are eager to do the work that the “mainstream media” can’t or won’t do, the same legal protections as old-timey journalists.