Tuesday, December 13, 2011

Gagging the Statue of Liberty and Skewering the Scales of Justice -- The State, 1 - Blogger, 0

The following is my response to a story I just read online, Crystal Cox Case Sets a Terrible Precedent with a Correct Ruling in a  blog on the Seattle Weekly Blogs website. (Links open in a new window.) The Mr. Cartier I address is the author of the story.

Mr. Cartier, though I'm not a lawyer, I reach a different conclusion about the law, though as a blogger myself, I understand the dilemma in defining just who qualifies as being a "journalist" when we're talking about the blogosphere and the wider Internet at large. My conclusion arises from part of the opening of the Oregon law: "No person connected with, employed by or ENGAGED IN any medium of communication to the public . . ." (my emphasis).

The two words "engaged in" are the basis of my conclusion. Let me start with the first phrase, "connected with," however. Then I'll turn to "employed by."

Who can we say is "connected with" any medium of communication. since the judge's opinion shows that he sees "media of communications" as being traditional news sources and ONLY those, I suppose that if an advertiser with, say, CNN, Fox, The Seattle Weekly, etc. also has a blog and writes something the subject of the piece feels to be libelous, and that piece is based on an anonymous source, the judge in the Cox case would rule opposite of his decision in the Cox case. After all, never mind that the advertiser, let's say, owns a furniture store, or restaurant, or -- well, *any* business that has nothing to do with news. However, such a person advertising with a medium of communication (as such is considered to be by this judge), that advertiser indeed has a "connection with" said medium.

"Employed by" is a phrase with a self-evident meaning. You yourself, Mr. Cartier, are an employee of this paper in your capacity as a reporter (or so I assume). As such, presumably you receive a salary, so are employ an outfit that is clearly a news medium. However, so are the people employed to keep the premises clean, as are the security staff, advertising sales team, etc. By a literal reading of the judge's view, his own words would force him to rule they, too, could write a blog that maybe not a single person at The Seattle Weekly even knew about, a blog in which that cleaner/guard/sales staff member wrote a story based on information from an inside source that the story's subject feels is libelous. But the writer would, according to the judge, fall under the protections of Oregon's relevant law.

Now we come back to "engaged in." Ms. Cox apparently has no "connection with" any news organization, nor is she employed by any. However, I am unmoved by the judge's argument that one *must* be a paid employee -- I'm willing to assume he didn't mean as a cleaner, etc., but as a reporter (though he left such a possibility open, I gather). But if she is not "engaged in" a medium of communication -- the blogosphere -- then on what grounds can anyone claim she libeled *anyone*? If she ISN'T engaged in that medium, then what is she doing?

There are other contrary instances.

I'm personally acquainted with a blogger who doesn't even have a formal business at all, but makes his living from the advertising he sells on his quite popular website. He isn't "employed by" his website, nor does he have any affiliation with any accredited news organization -- at all. Not as a reporter anyway. Yet in his niche, his entire website is entirely devoted to reporting news and offering commentary, sometimes scathing commentary. Clearly, he would run afoul of the Oregon law, as interpreted by this judge, were he to write a Cox-style piece.

Then think of the countless free-lance journalists whose sole role is to go out entirely on their own, research some piece then offer it for sale. According to this judge's take, a free-lancer who sold just one -- but the free-lancer who hadn't yet landed his or her first sale would not, even if that person had a hundred stories on file and still up for sale.

Finally, just how, in the good judge's opinion, an organization qualify for protection in the *first* place? It's number of readers, or employees, or advertisers (if any)? Some combination thereof? Or does it depend on the frequency with which it appears, or the number of stories, or, if it's a subscription-based outfit, its number of subscribers? Are words even necessary? How would he view a website or magazine that offered literally NO words at all, but only images -- without captions? True, I've never seen or heard of such a website or publication, but I can imagine one. Well, I guess at least one word would be needed -- a name for it. But it could be something completely bland one: "Pictures," for instance.

No, this judge still has a very steep and high mountain to conquer before he even approaches convincing me of the validity of his view. By the way, I wonder if the jury's verdict was a *directed* one?