Phil Gomes

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Sunday, May 22, 2005

Posted by philgomes 11:09 AM
Another Wrinkle In The Is-Blogging-Journalism Debate... And A Warning

Another Wrinkle In The Is-Blogging-Journalism Debate... And A Warning
First off, I'm not a lawyer. If you want to find qualified media law expertise in a blog, go to this excellent source. This post here is my admittedly amateurish analysis based on what relatively little I've read about the history of media law.
So... A little while back, some people started asking whether a "blogger backlash" has occurred or, at the very least, was in the making. In particular, this article by InfoWorld's Ephraim Schwartz got me thinking about the topic.
I'm going to throw my own little rubber ducky into this rhetorical bathtub, and here it is: Splish, splash... The backlash hasn't even started. And, thus, our little thought-experiment begins.
I'm honestly afraid that there is going to be a high-profile incident whereby some ill-informed members of the blogging community are going to try and have it both ways. By this, I mean that I can easily see a situation where a blogger forgets (or simply doesn't know) certain key rules of the journalistic art and tries to use "But I'm only a blogger!" as a defense.
A-list bloggers have more sense than to try this, of course. In the popular imagination, though, that might not matter. To many, a blogger is a blogger and it'll only take one of them to make a big enough gaffe and blunt all of the efforts bloggers have made to collectively build legitimacy. Whether or not the offending blogger has previously charged into cyberspace with "I AM A JOURNALIST" on his/her flag or has even peripheral interest in such arguments, such a situation will unravel much of what many bloggers have worked towards.
Here's what I mean. Let's say that Billy Blogger posts the following:
OMG!1!!1! WTF!?! Talk about a waste of your taxpayer dollar$. There's a scientist at Lawrence Livermore Labs named Dr. Sarah Sliderule who is leading a $950,000 program to determine whether female sheep can be impregnated from several hundred yards away using a high-powered gun. The FDA, Dept. of Ag, and the Federal Center For Animal Husbandry are apparently throwing money at this chick. Where did this woman get her doctorate? 50caliberimpregnation.com!?!

As an angry taxpayer, I'm creating the "Sarah Sliderule Award" to expose this kind of thing. Citizen journalism, afflicting the comfortable!! Tally-ho!!!

Let's assume that this post had a number of follow-on posts, excoriating Dr. Sliderule in a similar fashion. Let's also assume that this post has a factual basis and gets some degree of attention, working its way up through the blogosphere and eventually "tipping" into the mainstream media. Soon, even Aunt Gertrude hears about it.
Now, most anyone engaged in the practice of journalism has at least an intuitive knowledge of what it means to libel someone. The earliest and, apparently, most generally accepted test for libel comes from New York Times vs. Sullivan. Though there are some exceptions (such as the heat-of-battle clause described in AP v. Walker), the test in Sullivan looks for either 1) knowledge of falsity, or 2) reckless disregard for the truth.
Again, assume that Dr. Sliderule is engaged in the study described above and the presumed amount and sources of funding are both accurate. Clearly no libel has taken place in Billy's post.
One might argue that Dr. Sliderule is a public figure, since her work is paid for by tax money. Being a public figure opens one up to exposure and lessens somewhat one's claim to a right to privacy.
But here's the thing... Before Billy Blogger's post, it's not likely that you would have cared about who Dr. Sliderule was, even though her project is funded by "your taxpayer dollar$." There really wasn't much public interest in Dr. Sliderule's work before the post went up and eventually tipped.
Basically, someone who defames another cannot create their own defense by making the defamed party a public person.
So, Dr. Sliderule sues. Billy screams "I'm just a blogger!" Billy loses the case and has to do community service... helping male donor sheep load the cartridges for Dr. Sliderule's rifle.
Sound farfetched? The scenario I just described is very similar to the case Hutchinson v. Proxmire, that I mentioned in an earlier post.
In this 1979 Supreme Court decision, Senator William Proxmire called out a public mental hospital employee named Ronald Hutchinson and the agencies that funded his research in animal aggression. Proxmire did this on the Senate floor, in staff meetings, and in a newsletter that reached thousands of constituents. He bestowed the "Golden Fleece" award to the agencies backing Hutchinson's research. Hutchinson sued. Senator Proxmire lost.
Now, Billy Blogger is no Senator and he has no access to a venue like the Senate floor. Then again, the grass fire started by his blog would have reached a helluva lot more people than Proxmire's little newsletter. (And, face it, you probably don't watch C-SPAN anyway.)
I need people who are smarter about these matters than I am to tell me whether I'm completely missing the mark. Email me and I'll post the most thoughtful replies. My spam-resistant address is at the grey bar on the right. (I'd offer comments on this blog, but I don't really have the time to police against comment-spammers and trolls. Nevertheless, I'm usually pretty good about posting thoughtful email responses.)
In any case, I write this as a warning. The blogging community — both with conscious intent and through fortunate happenstance — has made incredible strides to become a highly (and increasingly!) important part of the media ecosphere.
Don't screw it up.


Note that the views expressed on this site do not necessarily reflect those of Phil's employer, its business partners, its clients, or anyone or anything that doesn't come from Phil.
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