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Definition of Journalist

Is Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read — and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.

According to the ABA Journal [link no longer available]:

federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

“In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal,” Bashman wrote in an e-mail.

Bashman’s account of the incident is posted on How Appealing [link no longer available].

Matthew Felling, writing at CBS’s website, examines Bashman’s claim to be a member of the media:

So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?

As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist — a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn’t determine who is a journalist and who is not. One doesn’t need to be part of any organization to report information to the public.

When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn’t define whether one is a journalist. Bashman is just as much a journalist even if he doesn’t get any money for his efforts — he’s still engaging in the same activity: bringing information to the public.

But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?

Here are some possible ways to draw the line and some of their pitfalls:

News media1. Perhaps the line should be drawn based on whether a blogger is engaging in original reporting as opposed to simply commenting on various news stories. This is a distinction that some in the mainstream media make — “We go to Iraq, we get the news from the place it’s happening. Some blogger then just links to our story and adds a few thoughts — it’s not the same.” True, it’s not the same, but both are still forms of journalism. The mainstream media is often filled with commentary, and opinion and news are often mixed together. The mainstream media loves to discuss other stories in the mainstream media. So if the New York Times or Washington Post or other elite media entity might not want to do original reporting on the salacious gossip about a celebrity, it can write a story: “So-and-so newspaper or blog or whatever says that Celebrity X did Y.” The news angle of these stories is that it is newsworthy that others are reporting about the scandal — even if the scandal itself alone somehow wouldn’t qualify. If this works for the MSM, then it should work for bloggers too.

2. Perhaps the line should be drawn based on one’s audience. If one has a small audience of just friends, then she’s not a journalist. But if one has a broader audience, then she is. But this line is nearly impossible to draw. Does a newspaper need to be read by many to be journalism? Many things are written for a niche audience. But if numbers don’t matter, then am I a journalist if I just tell one or two people some information?

3. Perhaps the line should be drawn based on the nature of the information one is spreading. If a person is speaking about personal information, she isn’t a journalist. If she is speaking about politics or culture, then she is. But the MSM reports on a litany of topics, often involving personal stories. Some of these stories may not be very newsworthy, but those who write them are still journalists and they are still at least attempting to engage in journalism.

I’m not so sure that the journalist / non-journalist distinction works. Everybody who expresses information to the public should be treated equally — being labeled a “journalist” shouldn’t carry any special privileges, especially since there seems to be no particularly good way to distinguish who is a journalist and who isn’t.

Howard Bashman has a constitutional right to post the judicial decision he posted — the Supreme Court held in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” Bashman enjoys this right regardless of whether he is paid by a mainstream media entity or doesn’t get a dime for his efforts. He has this right regardless of whether he blogs for 10,000 readers or just 2 people.

Is Howard Bashman a journalist? Should it matter? Perhaps that’s not a question we should even be asking.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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