Secrecy is trumping public interest in gun control coverage

Our impoverished national conversation on guns appears to have a new casualty: public information.

The latest victim is the Bangor Daily News in Bangor, Me., whose request for the names of concealed gun permit holders – a public record in Maine – unleashed a firestorm. The paper withdrew its request. [Read more...]

Attacking the Fifth Estate

Bloggers in Oregon, watch out. That’s because this month an Oregon court ruled that bloggers do not have same protection as the “media.”

This ruling emerged when Crystal Cox, a blogger, was accused of defaming Obsidian Finance Group and its co-founder Kevin Padrick on her blog. She posted that Padrick acted criminally in a federal bankruptcy case. Padrick sued and the court found that Cox was not protected under the state’s media shield law.

This decision has implications for bloggers around the country.

Since there is no legal definition for “the press,” this court ruling is one of the first to explicitly say that bloggers are not the media. This comes only a few short months after a federal court ruled that anyone, including bloggers, may legally record public officials, including police officers. The ruling said:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
[Page 13 of the Slip Opinion from Glik v. Cuniffe]

While the Glik case was a victory for citizen journalism, the Oregon ruling is a failure to recognize the drastic changes occurring in the journalism world. Current technological advancements have made the line between citizen journalists and mainstream media harder to define. This is beneficial not only to anyone who produces news but also news consumers as well.

Many forget that when a newspaper goes under, it is not only those reporters who have lost their jobs that are affected. And when a local newspaper is forced to downsize their staff and product, there is a gaping hole in their news coverage that the consumer is losing. Entire communities are left without news coverage and left without access to vital information.

Stepping up to fill the void left when a local newspaper cuts back or closes are citizen journalists. They have proven that it no longer takes press credentials or a New York Times business card to break national news. Citizen journalists have captured government scandals and discovered injustice in their state capitols. They do the same job that the “mainstream reporters” are doing without either a pay check or fancy office.

Citizen journalists are providing a valuable service to their communities. They are relentlessly searching for the truth by preserving liberty and democracy. They are doing all of this without the respect that a protected member of the media has.

Instead of penalizing citizen journalists and failing to recognize their value to the changing media world, the courts should grant them journalistic protections. Those who value news should hope that the Oregon ruling is not followed in other states.

Jason Stverak is the President of the Franklin Center for Government and Public Integrity, a leading journalism non-profit organization dedicated to providing investigative reporters and non-profit organizations at the state and local level with training, expertise, and technical support. For more information on the Franklin Center please visit www.FranklinCenterHQ.org.

What the Oregon blogger who lost a $2.5 million judgment should have done

You want to know the lesson of the Crystal Cox case?

If you’re going to court, get a lawyer.

Crystal Cox is the Oregon blogger who got hit with a $2.5 million defamation judgment for a blog post wrote critical of Obsidian Financial Group. According to the Seattle Weekly, she was unable to use Oregon’s shield law to protect her sources for the post in question, because Oregon’s law does not explicitly cover online publication. Since she was otherwise unwilling to produce any sources to verify her piece, the judge sided with Obsidian and hit her with the multi-million dollar judgment.

Cox represented herself in the case, and that was her biggest mistake. Remember the old saying: “He who represents himself in court has a fool for a client.”

I don’t care what Cox’s motivation for writing was. (Heck, as I’ve written many times before, I wish journalists would get far more aggressive about taking a stand and going after the crooks and cons in their communities. Neutrality shouldn’t be a requirement for journalism.) Nor do I care whether Cox followed SPJ or J-school rules when writing her posts, either. That shouldn’t matter. There’s nothing in the First Amendment about being a J-school grad or SPJ member. Or even a newspaper or TV station employee. Freedom of speech applies to everyone.

In case you haven’t committed it to memory, here’s the First Amendment, again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Obviously, though, we’ve got plenty of laws on the books abridging the freedom of speech and of the press – defamation laws being just a few of them. And ask the protestors at the Occupy encampments around the country about their right to peaceably assemble.

Fact is, the First Amendment, by itself, is pretty much meaningless today and is totally useless to anyone defending himself or herself in a court of law. The First Amendment is relevant only within the context of two centuries of case law that have refined its meaning within America’s criminal and civil justice systems.

That is why you need a lawyer when you go to court. Because only someone with extensive legal training is going to be able to navigate that immense body of case law in order to tailor those decisions to influence a judge or jury to rule in your favor. And if there’s no way to construct a winning case, a lawyer should have the experience to know how to craft you the best possible deal so that you can minimize the judgment or sentence you face.

Crystal Cox failed to use a lawyer. And that, more than anything else, is why she lost and got hit with that judgment.

So do you need a lawyer, right now? I’ve done plenty of work on my own that others hire lawyers to do. I’ve successfully filed my own trademark applications, signed basic, boilerplate advertising contracts and even sent out and responded to mild cease-and-desist letters. Friends who are attorneys have agreed with me – you don’t need a lawyer to handle every legal task you might face in life, provided you’re willing to do some research and get educated before you act.

But they also agree with me on this – if I’m in sniffing distance of a courtroom, I’m hiring a lawyer. Trademark applications are one thing – if I screw it up, I just get rejected and have to try again – but a court case can cost me my livelihood and my freedom. That’s nothing to address half-way.

Journalism schools require students to take classes in media law for a reason – so that they will have a basic familiarity with the case law that guides judges to make decisions in media suits. If you’re going to publish online, you need to have that knowledge, whether you went to J-school or not. (FWIW, I was a Political Science Law and Politics major as an undergraduate, so I’d taken enough Constitutional Law classes to be exempted from a media law class in graduate journalism school.)

So if you’re writing online and don’t know the basics of media law, yeah, it might be a good idea to ask a media lawyer out to lunch for a quick overview. Learn the names of some precedent cases and write them down for some future Google searches. Educate yourself. Ideally, you want to avoid any situation where you would need to hire an attorney.

But if you find yourself in one, you’d better go ahead and do that. If you’re going to court, get a lawyer.