That's not the First Amendment, Jim. That's shield laws, which are of
questionable constitutionality to begin with. I say that as someone
who has made his living as a conventional journalist for roughly half
of my career.
I've never fully bought the reasoning that gives journalists such
extraordinary protection against claims of libel and defamation. If
you libel someone, it's libel, no matter who you are.
The laws are designed to protect the mechanism of journalism by which
we can publish rumor and unsubstantiated claims against public
figures, without having to give up our sources. You can find
individual cases to make either side of the issue. But, as the court
implied, at the very least it hinges on an assumption of professional
ethics on the part of most journalists. If every blogger is considered
a journalist, that thin veil of justification is ripped to shreds.
I'm with the court on this one. The plaintiff still has to prove
libel. The decision just keeps the blogger from hiding behind an
assumption of journalistic ethics -- an iffy assumption to begin with.
What bothers me is the qualification standard mentioned, which practically
is a government-issued license to carry your opinion in public.
"Hernandez said Cox was not a journalist because she offered no professional
qualifications as a journalist or legitimate news outlet. She had no
journalism education, credentials or affiliation with a recognized news
outlet, proof of adhering to journalistic standards such as editing or
checking her facts, evidence she produced an independent product or evidence
she ever tried to get both sides of the story."
How many officially credentialed reporters and their editors would fail
those tests? Have you ever seen a reporter characterize protesters they
agree with as 'concerned citizens' while opponents were an 'angry mob'? I
had the chance to talk to the publisher of that paper when she was
hospitalized in the same room as my mother, and discovered she was further
to the left than Lenin.
Ironically those reporters found themselves arguing that they weren't
professionals when they wanted overtime pay.
Well, that's the problem with the shield laws to begin with, IMO.
There was a time when all of those qualifications meant a great deal.
But bloggers and online "news" organizations have debased the currency
beyond all recognition.
But even when it was all print, and when everything I wrote at
McGraw-Hill needed the approval of three editors, at least one of whom
fact-checked my stuff, and seriously or repeatedly violating ethics
was a short trip to a pink slip with little chance of getting another
job with a top-drawer publisher, there were plenty of questionable
organizations and journalists who didn't qualify for those standards
listed by the court.
It's always been a marginal call, IMO. Today, it's a joke.
That's not libel, that's bias. Bias is legal. Libel is not. If one
doesn't recognize the difference, he should stay out of the business.
He just doesn't get it.
Like police or firefighters.
Without knowing your age it's hard to know what to say here, except
that the Fairness Doctrine was the product of facts on the ground
during the early days of broadcasting, when there were few channels
(we got two TV stations, and considered ourselves lucky) and when TV,
particularly, wound up in a legal twilight zone between newspapers and
common carriers, such as the telephone companies. The FD was based on
the common-carrier side of the law, and similar legal principles apply
today for other common carriers. When cable came in, the FD went out.
But bias has always been part of the free press, more before 1950 than
at any time since. Now the Internet is turning it into a
yellow-journalism free-for-all again, like it was in the early days of
thr country. Bias is the normal state of the media, and works OK as
long as the opportunities to publish contrary views are readily
As for journalists and the shield laws, as I said, I generally agree
that the constitutuional and philosophical basis for them, IMO, is
pretty flimsy. They came about largely because of Watergate and the
Pentagon Papers, and a series of revelations about government(s) using
their power to intimidate journalists from covering corruption and
governmental abuses. Again, you can cite individual cases that, on one
hand, will convince almost anyone that journalism needs some extra
protections to fulfill the intent of the First Amendment's press
freedom, and you can cite other cases that make the protections
themselves look like abuses.
We may disagree about this, but my view is that bloggers have debased
the whole enterprise and make special protections for the press even
more problematic. My blood boils when I see intentional slander and
libel hiding behind shield laws. In the balance, I'd be glad to do
away with those laws, given the present state of journalism.