Friday, October 09, 2009

Bloggers, journalists and freedom of speech

Minor Win for Bloggers in Fourth Circuit's GHF Ruling
September 28, 2009

En route to tossing out a $2.9 million jury verdict for invasion of privacy and intentional infliction of emotional distress against the author of a hateful screed at , the U.S. Court of Appeals for the Fourth Circuit slipped in a goodie for bloggers at footnote 13:

[W]e believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Similar statements rejecting a distinction, for First Amendment purposes, between official "media" and non-media speakers were made in Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000), and In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986), both of which the Fourth Circuit cited.

The case is Snyder v. Phelps, No. 08-1026 (4th Cir., Sept.24, 2009).


Judge Says Blogs Not Legitimate News Source; No Shield Protections

from the seems-to-leave-a-lot-of-leeway dept
July 4, 2009

Back in May we wrote about a lawsuit questioning whether or not a blogger could use journalism shield laws to protect a source who sent her info she used for a blog post. The company the info was about is suing her for slander (which is odd, since slander is usually spoken, while libel is written). The woman, Shellee Hale tried to claim that she was protected under New Jersey's shield law, which allows a journalist to protect sources. In writing about this case originally, we pointed out that the judge in question clearly did not know much about the internet, and via his questions seemed positively perplexed that anyone would blog at all: "Why would a guy put all this stuff on a blog? Does he have nothing better to do?"

Thus, it should come as no surprise that the judge has now ruled that Hale is not protected by shield laws because she has "no connection to any legitimate news publication." This is troubling for a variety of reasons. First, it leaves open entirely to interpretation what exactly is a "legitimate news publication." The judge seems to think it only applies to old school media, saying: "Even though our courts have liberally construed the shield law, it clearly was not intended to apply to any person communicating to another person." Sure, but that doesn't mean that an individual who posts something in the pursuit of reporting isn't media as well. It looks like Hale will appeal this decision, and hopefully other courts will recognize that you don't have to work for a big media organization to be a reporter any more.


A Texas Case Asks Whether Bloggers Enjoy Journalists' Right to Early Appeals
Wednesday, August 5, 2009

Earlier this summer, a Texas Court of Appeals issued an opinion addressing a question that is likely to be of very significant importance in the coming years: Should the law treat bloggers the same way it treats traditional journalists?

In this column, I'll analyze the ruling. I'll also suggest that traditional journalists do not exclusively deserve special protections such as the right to interlocutory appeal. Rather, such protections should be available to all online and offline writers.

The Ruling on the Interlocutory Appeal, and the Ruling on the Merits

The Texas appeal, Kaufman v. Islamic Society, pitted writer Joe Kaufman against one subset of a larger set of Islamic groups that had co-sponsored a "Muslim Family Day" at an Arlington, Texas "Six Flags" amusement park. The suit alleged that Kaufman had defamed the plaintiffs in a highly critical piece he wrote about the event for the website of Front Page Magazine.

Kaufman sought summary judgment at the trial court level, and lost. He then tried to appeal. However, the plaintiffs argued both that Kaufman's appeal lacked merit, and that he was not entitled to file it yet.

In particular, the plaintiffs contended that Kaufman did not fall within a special statute allowing journalists to file interlocutory appeals – appeals that occur mid-case. Interlocutory appeals are generally rare and disfavored, because of the problems and delays that occur when cases ping-pong back and forth between trial and appellate courts. The statute carved out a special exception.

The appeals court ruled for Kaufman on both points, holding both that he was entitled to an interlocutory appeal, and that he was entitled to summary judgment on the merits of his defense. However, my focus here is on the Texas court's ruling allowing an interlocutory appeal on the ground that Kaufman counted as a journalist, even though his work appeared online.

The Reason Kaufman Was Granted An Interlocutory Appeal

Regarding the interlocutory appeal issue, the Texas appeals court cited a specific state statute that allowed such an appeal to be filed in this instance. The statute, by its terms, is triggered by the denial of a motion for summary judgment that is partially- or wholly-based upon a free-speech-based claim or defense...

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