The UCL Practitioner
Wednesday, March 23, 2005
"Who's a Journalist? Bar for Shield Law Protection Should Be Set Low"
An article in this morning's Daily Journal offers this definition of a "journalist":
A journalist is someone who distributes information, news or commentary and, in so doing, exercises editorial judgment. Under this definition, the technology of information delivery is irrelevant. Bloggers are not excluded categorically, nor are all traditional media necessarily covered. The essence of the definition is the requirement of an editorial function. The editorial requirement would exclude a publication that is a mere bulletin board, on which unscreened visitors can post anything they want. .... Also excluded are publications that knowingly publish fiction as fact, or purport to distribute mere rumor, without knowing or trying to determine the accuracy of the information or the reliability of their sources.
This blog, for one, meets that definition. When readers send me information about pending appeals, for example, I always check the court's website to confirm the information. When readers send me trial court orders, my task is a bit more difficult, because not all trial courts have docket information online. In many instances, I can at least check whether the case exists and whether a hearing was held on the date reported by the reader. If a reader sends me a copy of an order in electronic format, I make a judgment call about whether it appears to be facially authentic, based on my experience of what orders usually look like. Sometimes, the only way to truly confirm an order's existence and authenticity would be to physically go to the court clerk's office and check the file. I'm not able to do that, for obvious reasons that include constraints of time and geography. Therefore, my list of Prop. 64 orders has a prominent disclaimer. I have occasionally declined to post information that someone has sent me because I've determined that it is unreliable for some reason. If, after all my work and trouble, I don't get the protection of the shield law for my confidential sources, there's something wrong in the world.

UPDATE: Yesterday, the Electronic Frontier Foundation filed a writ petition on behalf of the bloggers against whom Santa Clara County Superior Court Judge James Kleinberg upheld Apple's subpoenas. And by the way, I don't mean to suggest that I think people send me inaccurate information. On the contrary, I appreciate every bit of information I receive from readers. I rely heavily on reader-provided information and this blog would be nowhere near as comprehensive without it. But since the information is going up with my name on it, I feel duty-bound to do my own independent investigation to the extent practicable.
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