Sunday, June 12, 2011

The Slippery Slope of All Bloggers are Journalists

The court was right. Shellee Hale, a blogger, was out of her lane. She made her inflammatory statement against Too Much Media, LLC, a New Jersey software company, on a message board at, a website for the porn industry and accused TMM of "violat[ing] state laws protecting consumers against identity theft." Unfortunately for her, a New Jersey court ruled against her claim that as a blogger she is also a journalist protected by the state's shield laws that shield journalists from prosecution who refuse to reveal sources.

I just finished reading Melissa Ford's well-written summary at, "Are Bloggers Journalists and Should They Be Protected By the Shield Laws?" It's about the Hale case. Hale is a mother, a former Microsoft employee, and a self-described investigator who wants to expose security breaches in the porn industry or something like that, according to multiple news sources.

CouponCandy, sharing her frustration about folks not paying their dues in her profession, commented on the BlogHer post and said that people who have not been formally trained to be journalists should not get the title and protections of trained journalists. Ford responded, pointing out that untrained writers are hired by newspapers and are considered to be journalists:
There is, though, a slippery line in defining journalist. For instance, my local paper--which is an accredited news outlet, in production for 50+ years and a respected newspaper in the area--has writers on staff who do not have a degree in journalism or a background in journalism. They have an interest in writing and they can write a news article well enough to be employed by this newspaper. Are they a journalist? Should they be protected? If a blogger gets a job with them tomorrow, should their blog posts not be protected, but the articles they write for this newspaper protected?

I'm not talking about in terms of quality, I'm just talking in terms of logistics--that a person can be not protected one day and protected the next day and not have the methods for collecting the facts for the piece change at all.
True, but even a trained journalist is protected one day but not the next. The judge made that clear by declaring that the person must be collecting information or working on a story for a "legitimate news media" organization. Hale tried to get around this definition by saying her website,, is also a news outlet and that she was working on a piece for a proposed "news section" at her site. The court rejected that argument on grounds that she never launched the news section.

As a journalist, however, I say "Real journalists don't break stories on messageboards." They play their big news close to the vest until the story is published. Practicing, trained journalists do not want to be scooped. Consider the words of veteran investigative journalists Penn Bullock and Brandon K. Thorp writing about how they broke the Rekers story featured recently on CNN:
When a journalist breaks a hot story, or even a pleasingly warm one, he feels a keen desire to stay atop it, to negotiate each of the story's developing angles before any other journalist thinks to try. (emphasis added)
So, Hale's messageboard comment was pretty inflammatory, and if true, it was also big news. Publishing such a claim on a website messageboard to which she had no fiduciary obligation and it had none to her, therefore, screams that she is not a journalist. She's an activist. It sounds to me as though she's driven by a specific issue with a specific industry, porn, and it seems her main goal is to sound an alarm of some kind. Sounding a warning was more important to her than breaking a news story.

Yes, a trained journalist can also be an activist, but a journalist should know the difference and understand when she or he is one and not the other or has blended the two. A trained journalist should also know how to write a statement to be read as opinion rather than fact.

An activist is not automatically protected from revealing sources nor are activists given the same rights as a journalist because it's understood activists have ulterior motives. (A journalist may also have ulterior motives but is trained to know that motives, no matter how noble, may not substitute for facts, and even though journalists are protected by shield laws, a journalist should also be prepared to go to jail to protect a source.)

So, I'm as annoyed as CouponCandy, who commented on BlogHer. I'm not annoyed at Ford's argument in answer to CouponCandy but at the course some of us who also call ourselves bloggers seem to be on of downgrading professional writers and journalists to mean anyone with a blog. Bloggers are definitely not automatically journalists, and so, we are not on a slippery slope if we stand by statements that define what a journalist is and isn't. (See Kim Pearson's piece, "Why James O'Keefe is Not a Journalist." )

If you are an amateur/untrained writer and you work for a newspaper or another publication, it's the willingness of its editors and publisher to pay you as a journalist that gives you credibility. In addition, the publication/publisher paying you takes on the risks of lawsuits and other consequences, such as loss of advertising income or readers, if you make false or harmful statements in the publication. That's why newspapers and other media outlets generally don't let you write whatever you wish in their publications. Editors and sometimes publishers monitor journalists' stories to guard against libelous errors. (I used to publish a newspaper. I took on the risks.)

But this does not mean that one must be paid to write to be a journalist. The point is that someone else other than you feels confident enough in your ability and integrity to let you publish under his or her publication's name. Most of all I am saying that journalists work in discourse communities where their work is read by someone else before it's published, and if no one else is involved to vet the work first, then the level of risk is directly proportional to the journalist's integrity and training.

Bloggers are essentially unvetted writerly cowboys. Their posts are not scrutinized by other editors or a publisher before going public, and so, any willingness of the courts to accept that the blogger is telling the truth without knowing from whom the blogger got the information is akin to giving a blank check to anyone with a blog to commit slander and libel. The court has to "consider the source" when deciding whether statements are true or untrue. It would be irresponsible and unfair to those against whom a blogger might make charges if any blogger can accuse any individual or business of anything without proof. Such a precedent would make lone bloggers unaccountable for their words in the larger community.

I'm not saying that some bloggers don't write as well if not better than paid journalist, nor am I saying that bloggers can't investigate and break a story that mainstream media neglects. What I'm saying is that if a blogger wants to be called a journalist and receive the protections of a journalist, then he or she should take time to learn about journalism ethics, the difference between sensationalism and reporting with integrity, and the difference between credible journalism and yellow journalism. For the sake of self protection alone, bloggers should also read up on libel, slander, and copyright laws.

I wish Hale the best and I appreciate what she's trying to do, and so, I'm glad that she had libel insurance, as she stated in comments on BlogHer. However, I hope other bloggers who want to take on hard news and break stories pay attention. Some people who have not been trained or who have never bothered to read up on journalism ethics and libel laws unwittingly take huge risks from which even libel insurance may not protect them.

Bloggers can no more hide behind ignorance of libel and slander laws than can citizens carrying concealed weapons hide behind ignorance of the law when caught with a gun in the pocket. Furthermore, possession of a gun alone does not make that citizen a marksman; and yet, if that citizen aims and shoots someone, she will be prosecuted.

Some people blog blindly. Free speech and whistleblowing laws have limits, and bloggers who don't understand those limits can do a lot of damage to themselves and to others. Talking about celebrities, public figures, and family life is low risk. Making accusations against private companies and private people is high risk.

What Hale did is akin to someone going to a bottlers association website and making the charge that one of the companies that provides caps to bottlers is providing virus-contaminated caps. Such a statement would not be perceived as opinion, but a statement of fact, and if the writer said it, then the writer should be ready to prove it. If the only way to prove the statement is to name sources and the writer refuses to do so, then what proof is there that the writer's story is true other than the writer's word? That's a lone blogger, a lone wolf. Where's the accountability?

Also, the Hale case is not the same as an ordinary blogger ranting about a company that ticked her off. When a blogger writes about an incident between her and a company, then she is the primary source of information, and as long as the blogger sticks to exactly what happened to her and does not embellish the actions of the company to place it in a falsely bad light, she's protected. It's one thing to write "XYZ Baby Powder gave my son a rash and no one from the company will respond to my letters. XYZ sucks!" especially if you've got proof of a doctor's visit and medical corroboration that your child's skin reacted to the powder. It's quite another to write "XYZ Baby Powder is putting a secret chemical in its powder that will endanger the lives of babies everywhere." The first statement is opinion based on personal and factual experience. The other is a statement that could ruin the company, and something you must be able to prove in court.

But why are we even discussing Hale's case in terms of her being a blogger anyway when she didn't make the comments on her own blog?

I'm struggling here to hit the stop-rant-button because my mind's moved on to the rise of websites that expect writers to write for free. In many ways, the willingness to call anybody with a blog a writer contributed to publishers devaluing content providers/writers. Different topic, I know, but still, here we go again with people making the argument that calling yourself by your aspiration means you've achieved that goal. Try telling your sons and daughters to call themselves medical doctors because they hope to be physicians some day and see what trained doctors and the courts have to say about that. When are professional writers going to stand up and say, "Enough!"? To be considered a professional, others in your field must vet you.

Journalism cloud from


msladydeborah said...

I have never considered myself to be a journalist. Hell-I'm not sure if I am ever a decent writer. I blog because it is an activity that I enjoy doing.

I think that there are some blogs that can use the argument that their publication is a form of journalism. Not every blog site can or should make this claim.

Vérité Parlant is Nordette Adams said...

I think a lot of bloggers, Deborah would not call themselves "journalists." I'm a trained journalist, but I don't think every time I produce a piece of writing I'm being a journalist. And if I had a story that was so hot I could be taken to court for writing it, I'd try to have it published by a newspaper or magazine or a news website first and get paid for it and have it vetted. I'm practical that way. :-)