I have been asked to appear on the Monday edition of Oregon Public Broadcasting's Think Out Loud program.
The show will explore the questions:
- Who qualifies as members of the media?
- Are bloggers journalists?
- Should they be provided the same privileges as other journalists?
This issue came to the fore in Oregon when the town of Lake Oswego barred Mark Bunster, a local blogger, from executive sessions of the town council. The show will begin with the mayor of Lake Oswego, and the blogger from the Loaded Orygun and then discussion will expand from there.
The Media Bloggers Association holds that ANYONE who is operating in a journalistic capacity must be treated as a journalist. Of course, that begs the question, what is "journalistic capacity". The courts have spoken on this issue and it basically reduces to a person or persons engaged in gathering news and information for the purpose of informing the public. The courts have specifically sidestepped the question of "who is a journalist" but state courts have generally erred on the site of the blogger.
There are legitimate concerns. Lake Oswego should not have to contend with any knucklehead with a laptop showing up and calling themselves a blogger/journalist and demanding access. From talking about this issue with many federal judges and even a few Justices on the Supreme Court, my sense is that the town would be permitted to place some reasonable restrictions on who was treated as a journalist for purposes of covering an executive session.
The problem in this case is that the criteria put forward by Lake Oswego would be highly unlikely to pass any sort of judicial test. According to press reports, Lake Oswego had created a definition of a media organization as "institutionalized," "well-established" and producing at least 25 percent news content. Setting aside the obvious - why the town felt the needed to make this a policy issue - the criteria appear to be vague, utterly arbitrary and a matter of killing a fly with a bazooka.
In what is arguably the most important blogger case to date, Apple Computer v. O'Grady case, Judge Rushing of the California Court of Appears focused on the function of the blogger not the form of the blog:
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.
We could not have said this better ourselves.
The court went on to make the important distinction, that being a journalist is NOT dependent on being associated with some larger economic entity which undercuts the notion that journalists must work for "institutionalized" or "well-established" organizations or that there is some statistical measure that determines what constitutes a "news". There have been similar cases in other states and I'd expect that should the case go to court Lake Oswego would take a drubbing.
The actions of the town of Lake Oswego exemplify why the MBA has gotten involved in "access" issues for bloggers wishing to operate in a journalistic capacity. In a perfect world, credentialing authorities such as the town of Lake Oswego, would take each request for access on its own merit and err on the side of more openness. In the real world, fear often drives these sorts of credentialing authorities to institute rules that are often designed less to address the question of "who is a journalist?" and more to make things easier on those making the decision. No one ever got fired for credentialing a reporter from The New York Times or, in this case, the Oregonian. If something goes wrong those who admitted the reporter have cover, they have a single point of contact to which they can address complaints, the reporter is "known" because those making the decision to provide access "know" the reporter's company. To that extent, bloggers are often confronting "fear of the unknown". In some situations, such as what has gone with the Ohio Legislature or the Congressional Press Gallery, the decision to provide access has been delegated to a club of journalists who then decide who gets access; ironically, these clubs tend to be far more restrictive on blogger access.
The solution is for credentialing authorities to catch up to the times and devote more resources to evaluating each and every request for access/credentials on its own merit. In the meantime, the MBA is working on assisting its members by providing the form that these credentialing authorities tend to demand regardless of how outdated: a single point of contact, an official request for access on letterhead, someone to be accountable for the request for access beyond the individual blogger, an ID card, a valid counter-party to contracts and so on. In my experience, most people who are thoughtful on the issue of citizen media would agree that the bloggers should not have to have these sorts of things in order to get access. That is my view. But as someone with more experience than just about anyone with blogger credentialing, I can tell you that quite often form matters even more than function to the people who make access decisions so until the world catches up with the idea of citizen media bloggers are going to find what the MBA offers useful.
Update: Dave Mastio of BlogNetNews is a member of the board of the Media Bloggers Association. The Loaded Orygun blog is an original BNN member from when Dave opened up blogs in Oregon. Dave's helpfully provided three links which provide a chronology of event:
LoadedO Gets Sunday O Treatment; Exec Session Issue Getting Close View
The O Follows Up on Exec Session Story; Also KEX Quick-Blurb
LO Review Interviews TJ, Updates "Bloggers as Media" Story
