Defining Media: Are Bloggers Journalists?

In the late hours of Friday evening, Gizmodo editor Jason Chen returned home from a dinner with his wife to find police searching his home and seizing all of his computer equipment, allegedly searching for evidence related to the stolen iPhone 4G prototype that the blogger exposed to the public.

Under California and federal law, Gizmodo argues, this warrant could not have been validly issued. California Penal Code Section 1524(g) provides that “no warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” Section 1070, California’s reporter’s shield provision (which has since been elevated to Article 1 Section 2(b) of the California Constitution) states that protected items shall include all unpublished information, such as “all notes, outtakes, photographs, tapes or other data of whatever sort,” if that information was “obtained or prepared in gathering, receiving or processing of information for communication to the public.”

Despite this explicit limitation, the warrant explicitly authorizes the seizure of such protected materials and information. Gizmodo is also arguing that the warrant is in violation of the Privacy Protection Act (PPA, 42 USC section 2000aa et al). The PPA was passed by Congress to ensure special protection for journalists by prohibiting government search and seizure of both “documentary material” (explicitly including photos and video) and “work product material,” material which is or has been used “in anticipation of communicating such materials to the public.”

The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply “if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.” 42 USC § 2000aa(a)(1).

However, regardless of whether or not Chen is a criminal suspect, the stolen iPhone will undoubtedly open the door for a much larger debate: what defines a journalist?

Chen certainly has all of the qualifications that one would consider consistent with being a reporter: a full-time job for which he is compensated for providing news and feature stories to an established media publication, press credentials issued by said media publication, and a hefty portfolio of prior coverage. The issue at hand, apparently, is the very media that his publication is published ON.

According to Yahoo! News, in response to Gawker founder and editor Nick Denton’s comment, “Are bloggers journalists? I guess we’ll find out,” Steve Wagstaffe, spokesman for the San Mateo County District Attorney’s office, the office is “examining that issue.”

To Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, the answer is obvious. “This is such an incredibly clear violation of state and federal law it takes my breath away. The only thing left for the authorities to do is return everything immediately and issue one of hell of an apology,” she told CNET on Monday.

However, Denton himself may have sealed Gawker’s fate (and opened a very slippery slope for bloggers nationwide) when he told Washington Post media critic Howard Kurtz last year, saying, “We don’t seek to do good,” Denton declared. “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”

Inn his exo.blog, Randall C. Kennedy expressed his feelings about Gawker in a post titled “Gizmodo Got What They Deserved”:

“Bloggers are not journalists. Real journalists have ethics. They check their facts and follow well established rules of conduct: Don’t fabricate; don’t obfuscate; don’t steal. Most high-profile bloggers, by contrast, follow a looser, ‘shoot first and ask questions later’ philosophy. It’s all about beating the other guy to the punch by being the first to break that big scoop,” charged Kennedy, who described himself as “InfoWorld’s most successful blogger throughout 2008-2009.”

Kennedy lashed out at a “community that fashions itself as the ‘anti-media,’ but which runs for cover behind so-called ‘shield’ laws designed to protect the real journalists they so often mock.” As for Gizmodo’s purchase of “what was ostensibly stolen property,” he called it “plainly criminal.”

The raid took place only a day after New Jersey courts ruled against blogger Shellee Hale, who was sued for defamation for her posts on Opranao.com, a site claiming to be the “Wall Street Journal for the online entertainment industry.” The appeals court in New Jersey agreed with a lower court judge that Hale failed to prove that she was a journalist, as required by the state’s shield laws, pointing out that she took no notes and never identified herself as a journalist to her “so-called sources.”

The appeals court stated: “Simply put, new media should not be confused with news media.”

We want to hear from you!

What do you think about the raid on Jason Chen’s home? Do you think that bloggers should be defined as journalists? What criteria should bloggers meet in order to be considered “news media”?