By Dan Kennedy • The press, politics, technology, culture and other passions

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

  • A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
  • A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.

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  1. Dave Atkins

    I wish the folks writing about this case would have actually reported on the legal reasoning and basis in the Oregon shield law instead of speaking in generalities. I don’t have time to look it up, but am I to understand that if Ms. Cox had been an employee of the New York Times or Fox News, she would get an automatic pass on her behavior? Rather than say that bloggers should be considered journalists, we should be holding all writers to the same standards? If anything, “professional journalists”–who should know better–ought to be more closely scrutinized.

    • Dan Kennedy

      Dave, if you read my Huffington Post piece, you’ll see that the shield law had almost nothing to do with the judge’s ruling. Where he went astray was in ruling that only “real journalists” could enjoy the protection of the Gertz negligence standard if sued for libel.

  2. A good reporter would have gone and parsed out the decision and gotten comment from other judges about the decision. These one-source reports aren’t journalism, either, although they now pass for “headline news.”

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