Are bloggers media? Court says yes, Senate says no

Techdirt’s Mike Masnick (@mmasnick) reports this week that a Florida court has found bloggers to be part of the media.

A University of Florida student blogged about a Florida businessman, Christopher Comins, shooting two dogs in a field. Rather than go after any of the major media which widely covered the event, Comins filed a defamation suit versus the student.

Turns out Florida defamation law requires notice be given to media properties at least 5 days before suit is filed.

Comins’ lawsuit was dismissed because he failed to give such notice. Comins argued at the trial and appellate court that notice was not required because the student’s blog was not a media publication.

Not only did the appellate court affirm the trial court, the court’s ruling made clear the importance of blogs to American society.

…it is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

Not so fast, says the U.S. Senate. Attorney Tom Goldstein, co-founder of the SCOTUSblog shared Wednesday:

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle [Denniston, covering the Supreme Court for fifty-five years for various media outlets] when it expires next month. We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

SCOTUSblog is not now and has never been, credentialed by the Supreme Court. Per Goldstein:

The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy. The Court has not indicated when that review will conclude.

Goldstein acknowledges that SCOTUSblog does have a largely uninterrupted ability to cover the Court, which has tried to accommodate the blog, despite not issuing credentials.

Well before the Senate issued a credential to Lyle, the Court had recognized Lyle based on his work for WBUR in Boston.  That remains unchanged.  Also, as an interim measure during the review of its policies, we have requested public seats for the cases that Amy is covering, and the Court has granted all those requests.

Goldstein still intends to appeal the Senate’s refusal to issue credentials. SCOTUSblog covers Supreme Court-related matters in the Senate, including its live blog coverage of Supreme Court nominations.  

Goldstein does not a have a list of the reasons for the Senate denial and believes the appeal will go to the same group that denied press credentials in the first place. If the appeal is denied, Goldstein is going to litigate the issue.

There’s no basis for the Supreme Court and Senate to refuse credentials here. From Goldstein:

No one seems to doubt that we are a journalistic entity and that we serve a public function. Winning the Peabody and other awards would seem to confirm that. And the Court for years has functionally recognized us, because obviously the overwhelming majority of Lyle’s work is for us. We do not want any kind of special treatment. Credentialing the blog doesn’t give us any special power or recognition; it just makes our jobs incrementally easier. All in all, it doesn’t seem to make sense to impose burdens on us that are greater than those that apply to others who fundamentally do the same thing.

Blogs play an important role in our society today. No question the press plays a critical role in a free and democratic system. But with newspapers and other media outlets contracting we have no where near the traditional press we’ve had.

At the same time, niches are being covered by professionals with domain expertise (think SCOTUSblog) in a way that was never possible before the net.

From a practical standpoint, how do you really tell who’s the media and who’s not. Making the decision based on who is solely digital based (blogs), and who is not (Newspapers with blogs) is absurd.

Is Goldstein to go out and start a print version of SCOTUSblog? Or buy a television camera and stand on the Court’s steps?

Courts in various jurisdictions, as in Florida, have already given bloggers press protection when it comes to defamation suits. SCOTUSblog is a blog among blogs. I look forward to Goldstein prevailing in litigation versus the Senate.

Image courtesy of Flickr by Scott Beale