When Truth Survives Free Speech
nytimes.com
nytimes.com
The problem is the judge used this case to make a wide ranging and unnecessary determination that bloggers are not journalists because they don't work for big traditional organizations like the NYT. Now the NYT, the employer of the author of this article, is, like many traditional media organizations, financially threatened by independent bloggers who have been gaining massive traction and readership over the last decade that draws away from traditional large media. The publisher and supporters of giant consolidated media are threatened by loss of consolidated points of media control which special interests can leverage. Completely independent journalists, including many bloggers, have been threatening the status quo for some time. Overreaching court rulings that only those working for corporate agencies are "legitimate" certainly serve the interests of those in power.
Whether the independent journalist/blogger in question was guilty of defamation didn't require such a finding about their status as a journalist so the decision is certainly overreaching.
On the issue of the Oregon Shield Law, the judge certainly misrepresented it since by stating (exact quote from ORS 44.510) "'Medium of communication' has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.", it says INCLUDES BUT IS NOT LIMITED TO, in its definition of "Mediums of Communication". The definition of "medium of communication" is critical because in ORS 44.520 the law reads "No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise..." Not just employed by, but connected with or engaged in any medium of communication to the public. Any reasonable reading of this law will include independent journalists and bloggers.
Full text of Oregon Shield law: http://www.orenews.com/web/legal/shieldslaw.php
The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information. [1973 c.22 ss.4,5; 1979 c.820 s.2]
the judge decided this based on the lack of "(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting 'the other side' to get both sides of a story."
(2) is maybe questionable; but (3), (4), and (7) are legitimate reasons.
Accept that the judge was BSing and this part of the decision makes much more sense.
I don't buy any of these at all.
#1 and #2 say that you need a piece of paper to be a journalist. It's not true, as you can see from independent bloggers in eg Arab states covering the various revolutions.
#3 through 5 says that you need to have "standards" to be a journalist. Again there is no one to bell the cat. If your rush expose has numerous misspellings, do you lose your status? How closely must you check your facts? How much conflict of interest must you disclose? "Disclosure: the author loves Apple products." Similarly for keeping notes and being up front with your sources. If you don't do it we might call what you're doing "bad journalism". But it's not "not journalism".
#6 says that aggregators are not journalists. To a degree I think this is true; see below.
#7 says that unless you provide fair views or equal time, you're not a journalist. I put this together with #3 to #5.
As a thought exercise, see which of your favorite journalism organizations pass the filter on any given day.
Now that that's out of the way, what is journalism? It's broadcasting an eyewitness account, or original ideas derived from an eyewitness account, to the public. And that's it. This is why I might exclude aggregators who don't add independent content.
Freedom of the press means freedom to publish and be read without censorship. We are all publishing all the time. This doesn't mean that we need to somehow narrow the field of journalism to exclude the unwashed masses, as this judge's opinion strains to do. We might need to specify the definition of "journalistic activity" if we need to carve out special protections.
no, they say that if you have a piece of paper, you could be a journalist. if you have no paper, but meet other criteria, you could be a journalist.
> #3 through 5 says that you need to have "standards" to be a journalist
yup
> Again there is no one to bell the cat
judges bell cats. that's the whole point of the judicial system. i'm going to show you how a reasonable judge (hey, reasonable person) would apply this standard:
> If your rush expose has numerous misspellings, do you lose your status?
nope. that's nowhere in the standard.
> How closely must you check your facts?
depends on the facts. something controversial? probably pretty closely. something obvious? probably not all that close. the important thing is that this is something that you as an organization do. cox didn't do any at all. great, doesn't meet this standard.
> How much conflict of interest must you disclose? "Disclosure: the author loves Apple products."
that's not a conflict of interest.
> Similarly for keeping notes and being up front with your sources.
seriously? you're okay with people who don't keep notes and lie to their sources "journalists"? the issue is not whether you didn't keep notes that one time. cox never did. she's not a journalist.
> #7 says that unless you provide fair views or equal time
nope. it just says you have to contact the opposing party for their perspective. you don't have to devote half your article to them. you'll notice that fox news has democrats on for their pundits to yell at. of course, cox never contacted the plaintiff for his opinion.
> what is journalism? It's broadcasting an eyewitness account, or original ideas derived from an eyewitness account, to the public
no. that's tweeting. if you think people anybody who writes anything about the real world special protections not afforded to the rest of the population, you're insane. the issue at hand is whether or not certain people get special protections (particularly from subpoenas). look, if you tweet about a murder that you heard about from someone, the DA can subpoena you for your source and your testimony. if you tweet about it, that doesn't make you a journalist immune from divulging your sources.
> Freedom of the press means freedom to publish and be read without censorship.
yup. there's no first amendment issue here! cox made defamatory statements; those are not neither covered under shield laws nor the first amendment!
> doesn't mean that we need to somehow narrow the field of journalism to exclude the unwashed masses
publishing and journalism are not the same! we provide journalists with special protections because they provide us (the public) with something valuable (journalism). we pass laws giving them special treatment (we're not allowed to subpoena their sources), and as such, we should definitely expect certain standards from them. i don't think the bar for journalism should be super high, but that doesn't not make everyone a journalist.
> We might need to specify the definition of "journalistic activity" if we need to carve out special protections.
that's the whole point. shield laws apply only to journalists. that's the question at hand.
This is not correct. There's always some degree of ambiguity, and as the Courts hear cases that test those ambiguities, those precedents -- known as "case law" -- effectively become part of the law, even though they're not in the text.
edit: Though come to think of it, maybe the judge though that was the easier question (wrongly, imo), and so looked at it in the other direction: since we can decide that bloggers aren't journalists, we don't need to unnecessarily decide the question of what behavior the Oregon Shield Law shields.
From http://arstechnica.com/tech-policy/news/2011/12/judge-blogge...
Journalists and bloggers share a fatal flaw: They're human. Someone signs their paychecks. They have goals, dreams, and motives. Who cares whether they're a "journalist" or not? What difference does it make?
I see so many journalists complaining about blogs. And I ask : if you're so underappreciated, why not start your own blog?
Journalists insist they have the training and wave memberships and credentials around as if they mean anything more than paying dues and agreeing with other people. When any cursory examination of media will find it riddled with errors, not only of the typographical kind, but of the completely-incorrect-facts kind.
It's just like any other industry that starts to get threatened by disruption from new technology - all the new people coming in are 'unworthy' 'wrong' and 'bad for the industry'.
If you ever want to hear a tale of woe, talk to an old-school photographer about digital cameras and the explosion of part-time hobbyists who do a little bit of work on the side with their $500 SLR.
In reality they are all people just trying to make their way in the world using whatever means they can.
Likewise, I'm surprised Mr. Padrick never contacted Google to have these pages removed either.
Had either Google or Mr. Padrick done their due diligence, I hardly think this case would have gotten as far as it did.
And anyway, it doesn't require a lot of Google love to rank for the query "Kevin Padrick of Obsidian Finance Group." That's about as long-tail as it gets.
>> Then again, I’ve got some institutional muscle when it comes to how I’m perceived on the Web. All Mr. Padrick had was his good reputation. Too bad there’s no algorithm to measure truth.
I know he's a writer and needs to end with a real zinger, but it's a cheap shot against algorithms and their role in helping us make correct assessments.
1. There are algorithms which can gauge truth and accuracy. There's few modern psychological theories so consistently proven than how algorithms can outperform experts in making judgements.
2. Despite a blanket dismissal of algorithms in general, Carr is of course taking issue with companies like Google. Ignoring that truth-judgement over a body of data as diverse as the web is going to be a very, very tricky problem for computers and humans... is the Google search engine's only directive to find "truth"? Ideally, the top search results contain the truth, but Google makes a philosophical judgment that other factors (such as link popularity and location) need to be considered when retrieving the most relevant results...because relevance is easier and safer to judge than truth.
In the same vein, the New York Times would like to say that the advertisements they run all contain truth. But truthiness is not the main criteria they use when deciding which ads to run: advertisements are printed because companies/interest groups/candidates put their money behind it.
Google is very good in these situations, but Google has a hard time differentiating between a popular movement and a single determined astroturfer. I'm sure Google would rather display a commitment to good journalism ("You want to know about topic X? Here's what people are saying about it.") rather than a pursuit of the truth, at least when it comes to organic results.
But in other cases where the answer is basically, "yes" or "no"...if an algorithm chooses the right answer, doesn't that count as truth? Take for example, the Apgar score, which consists of giving a newborn a score of 0 to 2 for five categories: complexion, pulse rate, reflex, muscle tone, and breathing. http://en.wikipedia.org/wiki/Apgar_score
A baby that scores 8 is considered to be doing well. A baby with just 5 merits additional examination.
This simple numerical score is credited with revolutionizing obstetric medicine and is still used today, even though it was first published in 1953. http://www.newyorker.com/archive/2006/10/09/061009fa_fact?cu...
I guess it's debatable whether this counts as an "algorithm"...but it involves the mechanical evaluation of a "score", with set guidelines for when such score is dangerously low. The fact that the scoring is done through human judgment is peripheral to the matter...it's not hard to imagine a machine being able to perform the same test (perhaps more accurately) were it cost-practical to build such a machine.
One more interesting note: The Apgar score was not developed by an expert. It was developed by a female doctor who had never delivered a baby (nor had a baby) herself, but felt that doctors were giving up too quickly on sick babies.
And the analogy breaks down here because the online ecosystem adapts very fast. It would work if there was some sort of gene that led to premature births plus high Apgar scores (the equivalent of a malicious website that ranks well).
That's why search is so tough: search engines and gaming have coevolved to the point that in plenty of areas, search quality would go down if people weren't trying to game the algorithm.
Primality testing is a very good example of a useful algorithm that gives an answer that is probably correct.
- An algorithm is a step-by-step process for transforming any valid input into a specific valid output. - A heuristic is a process that brings you closer to something that looks like an answer, but does not necessarily find the best possible answer.
Perhaps in the era of the web, the right answer is to have a kind of error range for sourcing.
If you see the same fact quoted in three places on the web, you track that there are three instances, and the number of independent sources is anywhere from 1-3.
On the web, reshares and linkings far outnumber independent synoptic views of the same data. So in a way it's more accurate to take the opposite approach, assuming it's a single source.
You start upping the number of independent sources when you can prove it. Like, there are multiple camera views. Or, you somehow verify that the independent observers are real people, and you make some best guess about whether their accounts are independent (that's trickier though).
but it's a cheap shot against algorithms
and their role in helping us make correct
assessments.
Incidentally, the First Amendment is very much uniquely American, there is no such provision in Common Law.
Further - even with the first amendment - it doesn't protect some radical americans from being killed by US Government drones.
And "real" media outlets NEVER do that. Oh, wait...
I know this sounds facile, but it does indicate the kind of journalism cases that the court is interested in.
Or perhaps I'm just being contrarian.
How is: "Well, look how the New York Times editorial board in 2003 incited the entire country into war"
...a legit rebuttal to: "A 2011 columnist for the New York Times points out that a blogger was primarily engaged in defamatory speech and so shouldn't be given the legal protections afforded to journalists." ?
"... turned out to be a MacGuffin, a detail that was very much beside the point..." -- is the reporter showing off he knows the word MacGuffin? He simply defines it immediately afterward making the word needless.
As Strunk and White says, "Avoid fancy words: Avoid the elaborate, the pretentious, the coy, and the cute. Do not be tempted by a twenty-dollar word when there is a ten-center handy, ready and able.
Then "Even a broken clock is right twice a day, but there is nothing in Mr. Padrick’s professional history or the public record that I found to suggest he is any of those things..." ... using old cliches doesn't help either. It just adds words with no meaning.