Object Lessons: Rantings of a Lone Pamphleteer
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Constitutional Blogging?

A judge in California recently sided with Apple Computer in its lawsuit against bloggers who published confidential trade secrets. It seems Apple Computers wanted the bloggers to divulge their source, bringing up the painful and probing question: are bloggers entitled to journalistic protections?

David Shaw of the LA Times doesn't think so. In an opinion article, he states:

"Given the explosive growth of the blogosphere, some judge is bound to rule on the question one day soon, and when he does, I hope he says the nation's estimated 8 million bloggers are not entitled to the same constitutional protection as traditional journalists — essentially newspaper, magazine, radio and television reporters and editors."

First, the legal question posed by Apple's court case is not whether bloggers have the right to constitutional protections, as Shaw implies, but whether they can publish material protected under other laws, such as trade secret law. (Apple wanted a ruling against shield law protections for bloggers, so it could fire the unnamed employees who leaked trade secrets. The judge sidestepped it.) Certainly a blogger couldn't publish an entire book by their favorite author on their website if it's protected by copyright law (other than public-domain works). But an individual's critique of the book is perfectly legitimate and protected under copyright.

The main question for bloggers' protections is, where is the line drawn? Blogging is a "print" forum insofar as it's written rather than spoken. Obviously the fact that bloggers publish online is not in and of itself a determining factor. If publishing online were the criterion, LA Times' own website would not be protected. So that's not it.

Is training the line, as Shaw suggests at length? Is a journalist with an MA from UNC-CH's journalism program more protected than a journalist with a BA from Podunk U., or a journalist trained on the job? Of course not. Just because bloggers aren't necessarily trained writers doesn't mean that they aren't entitled the same print protections already guaranteed to the new medium. Certainly the Supreme Court has already ruled that online work is protected by copyright.

Is the line drawn only around "legitimate news sources?" Shaw's implication that the formal editing process increases traditional journalism's cache (or improves their right to constitutional protections) is ludicrous. Read the corrections page, sometime, for a laugh. It's a hoot. Shaw also addresses the quality issue. If the quality of the magazine is the determinant, is the Weekly World News less protected than the LA Times? Now, I think they print drivel, but it's still constitutionally protected drivel. As the decision in Hustler v. Falwell implies, it's all protected, even if it's crap.

What about freelancers? Is a journalist with training who leaves their "legitimate" paper to freelance for various journals any less protected than when they were employed by a mega-publishing house? No.

And if that freelancer took his/her degree, training, and rights and started self-publishing a magazine that s/he distributed to friends and neighbors, is his/her work protected? Of course it is.

The point is, in this country, we may not agree with what you say, but we'll defend your right to say it in whatever medium you see fit. Certainly someone who prints out a journal and distributes it by hand has as many rights as the journalist sleeping in his city room, whether or not anyone proofread their work. Just because it's online doesn't make it less worthy of protection. Neither does its quality.

Shaw reference's Shield Laws (First-Amendment protections to journalists) which protect even private citizens from government interference into the publication of an individual's thoughts and ideas. Mr. Shaw misses the point -- a point a lot of journalists miss -- that constitutional protections are not the privilege or purview of any one group, but apply equally to us all.

Of course there is a great deal of trash on the Web, as Shaw points out (both in his text and by example). But journalism, like capitalism, gets weeded by the public. We know a great deal of what's blogged is unchecked and unverified. It's up to the consumer to weed through it, decide on what to believe, and judge a site based on its content and yes, its delivery. Obvious errors or poor grammar steer me clear of crappy sites. Doesn't it you?

Shaw is also forgetting one of our founding father's main tenets in creating journalistic rights. The First-Amendment rights apply equally to the "lone pamphleteer" as to a trained journalist with N degrees. Just because modern media makes it easier for individuals to have their say doesn't make what they have to say any less... protected. Any individual can string together sentences and pay for 'Net connections, true. But we don't forgo our rights as "lone pamphleteers" just because it's easier to self-publish now than it was in the 18th century.

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