Court: Blogger isn't journalist - he may be right

Update, April 1, 2012: The blogger not only isn't a journalist, she's apparently a shakedown artist.

Let's see the new media fluffers' take on this:

A federal judge in Oregon has ruled that a Montana woman sued for defamation was not a journalist when she posted online that an Oregon lawyer acted criminally during a bankruptcy case, a decision with implications for bloggers around the country.

Crystal L. Cox, a blogger from Eureka, Mont., was sued for defamation by attorney Kevin Padrick when she posted online that he was a thug and a thief during the handling of bankruptcy proceedings by him and Obsidian Finance Group LLC.

U.S. District Judge Marco Hernandez found last week that as a blogger, Cox was not a journalist and cannot claim the protections afforded to mainstream reporters and news outlets.

Is this just a matter of Oregon needing a better shield law? That's one claim.

“My advice to bloggers operating in the state of Oregon is lobby to get your shield law improved so bloggers are covered,” said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press. 

Dalgish may or may not be right on that. She is right on this:

“But do not expect the shield law to provide you a defense in a libel case where you want to rely on an anonymous source for that information.”

That's because Hernandez went further:

The judge ruled that Cox was not protected by Oregon’s shield law from having to produce sources, saying even though Cox defines herself as media, she was not affiliated with any mainstream outlet. He added that the shield law does not apply to civil actions for defamation.

But, Dalgish is not guaranteed to be right on this, if Cox is indeed not a journalist.

Now, contra new media fluffers who accuse old media of trying to maintain a guild system, I'm not doing that.

Let's read WHY Hernandez ruled as he did:

Hernandez said Cox was not a journalist because she offered no professional qualifications as a journalist or legitimate news outlet. She had no journalism education, credentials or affiliation with a recognized news outlet, proof of adhering to journalistic standards such as editing or checking her facts, evidence she produced an independent product or evidence she ever tried to get both sides of the story.

Emphasis on the last clauses are mine. Hernandez, although he appears to start from the "guild" point of view himself, goes beyond that to use generally recognized journalistic standards as a large portion of his decision.

And Cox's response, if anything, justifies Hernandez's decision:

Cox said she considered herself a journalist, producing more than 400 blogs over the past five years, with a proprietary technique to get her postings on the top of search engines where they get the most notice.

“What could be more mainstream than the Internet and the top of the search engine?” she said.

Let's try riffs on that:
1. Twenty years ago: What could be more mainstream than junk mail and a filled mailbox?
2. Sixty years ago: What could be more mainstream than Joe McCarthy and a stack of papers waved in one's hand?
3. Seventy-five years ago: What could be more mainstream than Father Coughlin?
I think you get the drift.

I'm sure Dalgish's organization and others will file amicus briefs in any appeal, but, really, they shouldn't. Both for the actual defendant and for the material facts involved.

Here's my response.

First, blogging may be journalism. It isn't automatically journalism. That's reason one professional media organizations should be wary of offering amicus briefs in this case, at least without actually taking a look at Cox's blog first.


Second, I'd potentially partially disagree with the judge that that plaintiff is not a public figure. I'd have to see the details of how big his tax shelter advice was, whether he's a defendant in the fraud case against some of his advisees and other things. He may be a public figure.

This isn't a slam-dunk one way or the other, unlike the Houston-area blogger of a few years ago, who was reporting on a criminal case, a felony, and using anonymous sources.. There's no indication that Cox was even using anonymous sources, or doing anything more than writing opinion pieces. And, even if attorney Patrick IS a public figure, while case law cuts more latitude on opinion pages in conventional newspapers and magazines, even there, there isn't a license to libel.

Given that Cox is using a "proprietary technique," which is probably called paying $99 to some SEO optimizer outfit, and boasts about that, she's not a journalist from where I stand, and probably stands guilty of the failings of effort Hernandez found.

I do agree with media analysts that a case like this shows we need SCOTUS to eventually wade in. BUT, this case ain't the vehicle for it.

Meanwhile, the New York Times op-ed section, with one of its "Room for Debates" set of mini-columns, has weighed in. Of the four contributors, one notes that post-"Sullivan" understandings of libel and public figures apply to the general public, not journalism; one halfway wrestles with the idea of what individual bloggers must be doing to prove themselves journalists, without looking in more detail as to whether Cox met that hurdle; and the other two, including one from the Poynter Institute (which I see as more and more coasting on "reputation") talk in terms of vague platitudes without addressing case specifics at all.

The jail bubble bursts in Texas

The Great Recession never saw a huge housing bubble burst in Texas, unlike most Sunbelt states. But, what it IS showing, now, is the bursting of a huge bubble of jail construction, a bubble that, as documented here, threatens to hobble, even crush, finances of a lot of small, rural counties across the state.

And, for Texas GOPers and others who tout privatization, let's not forget that much of the push for building more of these jails was driven by private jail companies like CCA.

I feel sorry for these local counties, but NOT for the all-GOP governments that bought off on the tough-on-crime, big-on-jobs Faustian bargain that drove such construction in the first place.

And, as the story notes, the privatizers are pulling out of these "Jail to Nowhere" places too. So, I don't feel sorry for county governments, or the state, for not getting some ironclad guarantees from the likes of CCA. That said, I'd like to see a few counties sue the state, even if it would go nowhere constitutionally.

I'd also like to see the Democratic Party make more of an issue of this, as well as get tough on its own members, whatever level of government, who have supported prison privatization.

Of course, none of this will actually happen.

#GoldmanSachs, Village Voice, prostitution, disgust

OK, multiple disgust revealed in this Nick Kristof column.

The first disgust is that Goldman Sachs is a partial owner of the alleged sex trafficking website Backpage. Not that surprising, whether or not, per Kristof, top brass at Goddam Sachs knows about this latest issue. (Contra Saint Nick, having seen Goddam Sachs cybersquat on solar energy public land sites, sell against its own major investors, etc., I'm NOT inclined to give its top brass the benefit of the doubt.

The second disgust is that Village Voice Media owns part of this site. That said, given that VVM's national group of alt-weeklies (including, here in Tejas, the Dallas Observer and Austin Chronicle -- I can't remember what Houston's alt-weekly is) were making money off escort services, albeit, I hope, ones that didn't dip into actual trafficking, years ago, long before the rise of the Net made such things more private/discreet. Again, disgusting but not surprising. Disgusting also, to the degree that such places are exploitative (and I'm not a "gender feminist," so I'm not going to tar with a broad brush) an allegedly liberal site like VVM was into them.

The third disgust? That Goddam Sachs is a partial owner of the allegedly liberal Village Voice Media.

What if some editorialist on staff at one of the stable of VVM products decided to go all Matt Taibbi and rag on Sachs week after week? How long would she or he last? And, will anybody try it?

The value of agnosticism

Reading elsewhere here (from a "skeptic") that "agnosticism has no intellectual merit"? Tosh. Certainly if we're talking about a limited agnosticism, such as whether or not science will "solve the mystery of consciousness," it has plenty of merit. Even if we're talking about "big ticket" agnosticism, the existence of a deity, it has merit, and not just as a halfway house. Both religious believers and a certain class of atheists who insist on absolutes, including absolute certainty, and cannot live in a world of grays, are mistaken, in my opinion.

 

Second, it’s ironic, or worse, for a skeptic, even if in the breed of modern self-proclaimed “scientific skeptics,” to reject the value of agnosticism. That said, this is another reason why I’ve said before, and will say again now, that modern “scientific skeptics” need to actually familiarize themselves with the philosophy of Skepticism.

 

Third, to claim that Arcesilaus never advocated such a thoroughgoing agnosticism, or skepticism, as to be skeptical even of skepticism, is not true. Such versions of agnosticism were advocated. And, no, that’s not a self-defeating concept, no more than is the pithier “question everything.” First, the agnosticism proposed is a state of mind, not a state of being. Related to that, no advocacy is made for the permancy of agnosticism in every instance in life. And, related to that, Arcesilaus’ skepticism is probabilistic, anticipating in some way Bayes’ theorum, perhaps.

 

Fourth, this doesn’t even consider Pyrrhonic skepticism, which is actually even more necessary today. Pyrrho advocated what he called “knowledgeable ignorance,” or, in more detail, taking a deliberate stance of non-certainty against dogmatism, whatever its form or stripe.

 

And, especially as some “scientific skeptics” are also “Gnu “Atheists” or approach them in mind, that’s the biggest reason of all “scientific skeptics” actually need to learn more about the roots of Skepticism, the philosophy.

 

“Darkness,” metaphorically speaking, can produce more light than heat can.

 

And, per the likes of a Scott Atran, the desire for certainty shown by both true religious believers and true atheists, or "scientific skeptics," are two sides of the same coin -- more general human mental patterns, such as causation-inferrers and pattern-inferrers, put to the service of ideologies, dogmas and isms for which they had never evolved (since evolution doesn't have Aristotelian final causes.

#HuffPost bloggers get #DarwinAward, legal equivalent

A U.S. District judge has dismissed with prejudice (note that) a suit 9,000 bloggers filed against Huffington Post, rejecting their claim to be entitled to a $105 million cut of the pie from the Greek Goddess' merger with AOL.

This is why it's a Darwin Award, legal equivalent. From the story:

U.S. District Judge John Koeltl said "no one forced" the bloggers to repeatedly provide their work with no expectation of being paid, and said they got what they bargained for when their works were published.

"The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open," the judge wrote.

Koeltl also dismissed claims that AOL materially misled the bloggers about how often their works were being viewed, and how much revenue they were generating. 

Bingo.

To go into more detail.

First, the bloggers were blogging for free before a merger. To riff on Yeshua bar Yusuf's vineyard, you blog for no denarius earlier, you blog for no denarius later.

Second, Arianna had a history of things like plagiarism before the merger. You knew who you were dancing with all along.

Third, before her (fame and finance driven) self-reinvention, she was married to a rich conservative. More "history."

Fourth, from the story, more Drwin Award level stuff:

Jeff Kurzon, a lawyer for the bloggers, said, "We are reviewing the decision and considering our options."

Really? Are you, as a lawyer, too dumb to get the "with prejudice" part of the ruling? Or, are you gambling that a fair chunk of the 9K suing bloggers are that dumb? In that  case YOU are the one who should be sued, Mr. Kurzon.

Per friend Leo Lincourt, there may  be moral issues here, but they were evident before the merger. I think a fair chunk of the bloggers are probaby less idealistic than they claim, perhaps a bit like a fair chunk of OWS supporters who suddenly discovered how evil Wall Street was when it wouldn't hire them.

Fact is, these bloggers have a bit of recourse, at least, still today.

First, how many of you 9K are STILL blogging for HuffPost? STOP IT! You're now part of the problem, not the solution.

Second, take the next step. If you still read any paid blogger on HuffPost, STOP IT! Even if you can't read their particular thoughts anywhere else. 


Third, tell your favorite paid bloggers what you're doing, and why.

More economic good news for Obama?

Consumer confidence has hit an almost-five-year high. And, it's possible that hiring will continue on its slow uptick. The stock market reflects the sentiment, though it's interesting that health stocks soared on the presumption that SCOTUS will gut Obamacare.

I don't think the unemployment rate will fall below 8 percent before September. But, if it gets down to that level, an even 8.0, and oil prices stay below, say, $115/bbl, and people do a reasonable uptick in purchasing, I give Obama 3-2 odds against Romney. The SCOTUS ruling on Obamacare, whatever it is, will be spinnable his way more than Romney's. Romney will try to tack back left, but he's got too much on the record for that to work too well.