"The decision in the trial court below turned on whether a blogger defendant was a journalist and whether her speech involved a matter of public concern – both of which affects the standard of liability under Oregon law.
In addressing the question of who qualifies as a member of the news media, the lower court adopted several restrictive criteria that do not take into account the fast-evolving nature of the journalism profession and that severely limited the class of individuals who can take advantage of the increased First Amendment protections that limit the law of defamation.
The determination of whether a particular person qualifies for such protections cannot be based on what a journalist’s job traditionally has been; rather, any test must be closely matched to the constitutionally protected function journalists perform."
"In assessing whether the speech in this case involved a matter of public concern, the lower court focused on the status of the plaintiffs and pointed out the lack of public debate in the subject matter of the speech. But speech that has yet to stir any public controversy may be no less a matter of public concern than speech that arises after a public dispute develops.
To hold otherwise has the potential to provide news gatherers who are first to alert the public to potential misconduct –breaking the story before there is any public awareness, much less interest – a lesser degree of constitutional protection than individuals who speak out only after the public is already aware of the facts of the story.
Such a rule would turn First Amendment jurisprudence on its head."
"The distinction between media and non-media defendants in private-figure libel suits creates a heightened interest in broadly defining the term “news media.”
In New York Times v. Sullivan, the United States Supreme Court made its first foray into grafting First Amendment protections onto state common law rules that had allowed strict liability in defamation actions, holding that a state cannot award public officials damages for defamatory statements concerning their official conduct without proof that such statements were made with “actual malice” – that is, with knowledge of falsity or reckless disregard of the truth. 376 U.S. 254 (1964).
The Court’s New York Times constitutional fault protections were subsequently extended to public figures. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). With respect to private figures, the Supreme Court in Gertz v. Robert Welch held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent."
"Justice Sandra Day O’Connor’s majority opinion left open the possibility of a different outcome for nonmedia defendants in holding that a private figure plaintiff could not recover damages without first proving the defamatory statements made by a media defendant on an issue of public concern
were false. Id. at 779, n.4.
The Supreme Court has yet to definitively decide whether the constitutional protection afforded by Gertz applies to nonmedia defendants, leaving lower courts split on the issue. Several states do not apply Gertz in situations where there is a nonmedia defendant.1 Other jurisdictions, however, have eliminated the distinction between media and nonmedia
In Oregon, whose law the lower court applied in this diversity jurisdiction
case, the state Supreme Court has interpreted the Gertz fault standards to apply
only to media defendants.
Liability for a media defendant and a nonmedia defendant thus makes the definition of that term critically important in libel cases decided under Oregon law.
Courts must interpret the term “media defendant” broadly enough to include any content providers who have the intent, when gathering information, to disseminate it to the public.
Long before the advent of the Internet, the Supreme Court recognized that the definition of “press” does not depend on the medium of distribution of the speech in question. In Lovell v. City of Griffin, the Court made clear that “[t]he liberty of the press is not confined to newspapers and periodicals. … The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” 303 U.S. 444, 452 (1938). Indeed, many courts and legal scholars have openly expressed their concerns with the difficulties of defining who may fairly be classified as a journalist.
Many courts, including this one , have adopted workable definitions of news media in reporter’s privilege cases, holding that a testimonial privilege applies to individuals engaged in the practice of compiling information for public dissemination.
The criteria adopted encompass not simply the traditional press but also nontraditional newsgatherers such as those who, without any affiliation with a recognized media entity, publish their material online.
The U.S. Court of Appeals for the Second Circuit was among the first to establish that a nontraditional journalist can invoke a reporter’s privilege when, at the time of the news gathering, he or she has the intent to investigate and disseminate news to the public. Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987).
The von Bulow case involved a civil lawsuit that Sunny von Bulow’s children brought against her husband, Claus von Bulow, who allegedly drugged her and caused an irreversible coma. Id. at 138-40. The plaintiffs sought information from the author of a book about the investigation into the crime. Id. In determining whether it should apply a reporter’s privilege to the book author, the
court stated that:
[T]he individual claiming the privilege must demonstrate, through competent evidence, the intent to use material-sought, gathered or received-to disseminate information to the public and that such intent
existed at the inception of the newsgathering process. … Further, the protection from disclosure may be sought by one not traditionally associated with the institutionalized press.
Id. at 144-145. On the facts, the court found that the author did not have the benefit of the reporter’s privilege because she was not independent of the von Bulows and did not have the intent to disseminate news. Indeed, the author had a close relationship with Claus von Bulow and admitted during oral argument that her intent in writing a book was to vindicate him, not to publish an account of the
situation. Id. at 145. The Third Circuit also adopted this test in In re Madden, 151 F. 3d 125, 129 (3d Cir. 1998) (holding that an employee of World Championship Wrestling who recorded reports about professional wrestlers for a paid telephone hotline was not a journalist entitled to the reporter’s privilege because he was not independent of World Championship Wrestling and did not have the requisite “intent at the inception of the newsgathering process to disseminate investigative
news to the public”).
This Court in Shoen v. Shoen adopted a test similar to the one in von Bulow
when it held that a reporter’s privilege applied to an investigative book author. 5
F.3d 1289, 1295 (9th Cir. 1993). It reiterated the von Bulow’s reasoning that “[t]he
journalist’s privilege is designed to protect investigative reporting, regardless of
the medium used to report the news to the public.” Id. at 1293.
In noting that “[w]hat makes journalism journalism is not its format but its content,” the Shoen
court concluded that “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.”
Similarly, the U.S. Court of Appeals for the First Circuit applied the privilege to two academic researchers, Cusmano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998):
[T]he medium an individual uses to provide his investigative reporting
to the public does not make a dispositive difference in the degree of
protection accorded to his work. …
Whether the creator of the materials is a member of the media or of the academy, the courts will
make a measure of protection available to him as long as he intended “at the inception of the newsgathering process” to use the fruits of his research “to disseminate information to the public.”
.. The court went on to say that the authors were protected by the privilege because their intent had been to “compile, analyze, and report their findings.” Id. at 715.
More recently, the New Hampshire Supreme Court found that the reporter’s privilege derived from the state constitution’s guarantee offreedom of the press protected a website providing information about the mortgage industry. MortgageSpecialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H. 2010).
The court rejected an argument that the website was ineligible for protection under the privilege because it was neither an established media entity nor engaged in investigative reporting. Id. at 189. Rather, because the website “serve[d] an informative function andcontribute to the flow of information to the public … [it was] a reporter for purposes of the newsgathering privilege.” Id."
Source of BRIEF AMICUS CURIAE OF THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS IN SUPPORT OF Free Speech Rights of ALL