Update Journalism Shield Laws for Digital Age

Published December 22, 2011

Enacted by 40 states in the wake of the Watergate scandal, media shield laws help strengthen freedom of the press by protecting journalists and their confidential sources from government harassment. Unfortunately, many of those laws have a huge hole in them, as states have neglected to revisit the laws to reflect the rise of citizen journalists since the advent of the Internet.

Two legal cases decided this year make clear the necessity for states to update their journalism shield laws to define bloggers as legitimate media journalists. The first, Too Much Media v. Hale, was decided last spring against investigative blogger Shellee Hale by the New Jersey Supreme Court. The second, Obsidian Financial v. Cox, resulted in an Oregon U.S. District Court judge entering a $2.5 million judgment against blogger Crystal Cox.

In both cases, judges determined online bloggers do not warrant existing media shield-law protections because they possess no affiliation with what state laws define as traditional print and broadcast media. Following from that supposition, bloggers cannot be considered legally as journalists or media if they, according to Oregon Judge Marco Hernandez, don’t meet specific criteria, including “any education in journalism; any credentials or proof of any affiliation with any recognized news entity; proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest” as well as “keeping notes of conversations and interviews conducted; mutual understanding or agreement of confidentiality between the defendant and his/her sources; creation of an independent product rather than assembling writings and postings of others; or contacting ‘the other side’ to get both sides of a story.”

Many in the newspaper industry celebrated Hernandez’s opinion as a protection of “real journalism” in this age they derisively depict as overrun with the “faux news” of Fox News, Rush Limbaugh, Andrew Breitbart, Glenn Beck, and the Drudge Report. Unspoken in their defense of Hernandez and the New Jersey Supreme Court is a degree of institutional prejudice, a snobbishness borne of years of education, laboring as ink-stained wretches, and pride in working for big-name mainstream media outlets.

The aforementioned “imposters” have long-since become institutions, however, and traditional media now direct much of their contempt at the lowly “pajama” media who toil at reporting and opining on local and regional scandals from their home offices. The traditional measure of a journalist, however, has been his or her success at breaking stories, and by that standard the bloggers include some very serious journalists who clearly merit the same protection as those possessing journalism degrees and working for more-prestigious outlets.

Hernandez’s opinion, based on an Oregon law adopted in 1973, presents a major barrier against entry by online journalists who wish to report on news stories. Under such restrictions, the late Peter Jennings never would have progressed from high-school dropout to the anchor desk of ABC News. In addition, Hernandez failed to consider the increasing number of journalistic “scoops” by online blog news sources such as Little Green Footballs, which revealed CBS News’ and 60 Minutes’ use of counterfeited documents to cast aspersions on former President George W. Bush’s military record–an MSM flub that deservedly resulted in the firing of longtime anchor-reporter Dan Rather.

As most state laws currently define journalists and legitimate media, woe be unto a blogger who beats the MSM to the punch of major stories through good old-fashioned legwork and reporting, as in the case of Hale and Cox, both of whom ferreted out industry-insider information. It’s past time to end the turf wars between the MSM and the Internet by including bloggers in state media-shield laws.

Bruce Edward Walker ([email protected]) is managing editor of The Heartland Institute’s InfoTech & Telecom News.