Monday, June 28, 2010

ARE BLOGGERS JOURNALISTS OR MALCONTENTS? IT DEPENDS

Blogging has an incredible potential for exposing the ills of a community and moving society forward. This will not be true so long as the best Brownsville can do is bloggers who learned the trade of journalism at the Brownsville Herald. There have been exceptions in the past and will be exceptions in the future. How a story is approached should not be guided by the legal limits of drama and half-truths you can put into a story and avoid liability. The people, namely the readers, have become sophisticated enough to know that journalism is no longer a profession of just the facts, and bloggers are mostly malcontents with little regard for true investigation into the facts or getting the facts straight even when they know the facts.

Today most journalists and bloggers are the same - what ever it takes to get the limited readership to read their half truths and lies. This is not journalism - it is garbage.

The blogosphere has created an interesting problem for journalists. A good chunk of the reading public is no longer interested in facts - they just want deception which justifies their ignorance. Desperate to maintain a semblance of readership newspapers have taken on the stylings of malcontent bloggers.

SO THE QUESTION IS NOT JUST WHEN DOES A BLOGGER BECOMES A JOURNALIST, BUT WHEN DOES A JOURNALIST BECOME A BLOGGER?

This question is important because it goes to when you can and cannot be sued. As I have noted in the past, I believe the news/oped piece Juan Montoya did on BISD Trustee Joe Colunga, which got him and Sanchez sued, was a valid piece of journalism. The fact I would not have done it because I am hesitant to bring a politician’s child into the public eye, does not mean it is not journalism.

Knowing the law on the issue was difficult for me because so long as I wanted something from Sanchez’s insurance companies, I was not going to give them what they wanted - a way out of the Colunga lawsuit. That problem resolved itself when they realized they were defending a lost cause. I have now provided the insurance company with the needed case law to win the Colunga lawsuit, assuming it had not yet settled.

So what is the law?

‘In other words, von Bulow holds that the purpose of the journalist's privilege is not solely to protect newspaper or television reporters, but to protect the activity of investigative reporting.”

At the end I will provide the reader with the opinion from which all of these quotes originate.

So what is the journalistic privilege? It basically means you do not need to give up your source. For our purposes being a piece of journalism means, the plaintiff must prove the blogger acted with actual malice. Colunga could never reach that standard thereby entitling Montoya/Sanchez to a summary judgment as a matter of law.
Key to bloggers is the following: “Thus, "the critical question for deciding whether a person may invoke the journalist's privilege is whether she is gathering news for dissemination to the public." Again this case focuses in on journalistic privilege, but for our purposes what is important is being recognized as a journalist for purposes of being able to use the ‘actual malice” standard as a defense.

Now I am not going to go through the entire opinion. But another qualifier is, are you reporting facts or just some malcontent under the guise of investigative journalism just reporting garbage? You are not going to succeed in claiming to be a journalist when your blog seems incredibly adept at getting the facts wrong, or not caring about the facts.

The courts have opened a door to bloggers to give them an incentive to get the story correct. This is a good thing. But the courts are also making it easier and easier to sue bloggers. The courts have come to recognize that far too many bloggers believe blogging means destroying anyone who does not bow down to you. It does not.

Freedom of speech means nothing if in the end we lose it to malcontents who do not give a rats ass about what happens in our communities. No one can nor should control the morons who need the trash to feel complete. In the end the best form of regulation comes from the people. The people need to learn to read with an eye for critical thinking and commonsense. If you believe the FBI raided anyone’s office and the only source of reporting is a blog, you are a moron demanding false information. An eye for commonsense and a capacity for critical thinking is all we need in our readers to make a blog credible.

Because I believe in the blogosphere I am moving forward in Washington DC to have the federal courts deal with the issue that blogges who edit their own blogs cannot be held accountable for defamation. There is no language in any federal or state law which provides for same. The 9th Cir. created the rule, while the 7th Cir. has noted it cannot find the rule in the plain language of the statute. Without credibility the blogosphere dies. It becomes a place where bad people destroy innocent people and bad people go to feed their addiction to ignorance.

And for the record, there was never any gag-order. You would think someone who reads English would know removing past comments does not bar posting future comments.

http://pdfserver.amlaw.com/nj/Media-a0964-09.pdf

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