"You'll never get ahead if you don't take care of what you have." - Doris Waddell, RIP

A historic building on our U of M-Morris campus - morris mn

A historic building on our U of M-Morris campus - morris mn
The multi-ethnic building was the original home of the music department at UMM. (B.W. photo)

Tuesday, August 30, 2011

Whither John Hoff in cutting-edge case?

(Image from City Pages)
 
The John Hoff trial and resulting legal quandary could be described, in Minnesota parlance, as "a heckuva deal."
The purpose of this expression is to be noncommittal (though knowledgeable), but it's hard to be noncommittal about matters involving John Hoff. He's a new media practitioner. For that I admire him.
Outside of that I'm clueless as to his actual journalistic talent, acumen or overall character.
I don't wish to take sides regarding Hoff and the skirmish in court. But the bedrock principle of free expression demands attention.
Some of Hoff's detractors have said they're tired of the sanctimonious intoning of "free expression, the First Amendment" etc.
I grew tired of this too when it came from the self-important pillars of the old media (e.g. Daniel Schorr). But I sense nothing sanctimonious about the pleading for an unfettered new media.
Isn't this totally populist?
Hoff has his platform but others can avail themselves of same. I am.
We don't want legal minds getting tangled and clouded assessing the online world of communications. For that reason I'm taken aback at the Hoff verdict.
He lost. I don't want the public to lose. The judgment of Judge Denise Reilly's court may not be the last word though. We're still in a standoff. The clock ticks and legal minds get absorbed.
People with special interest in the media read the coverage and wonder "Is this all there is (to the facts in the case)?"
Putting aside whether Hoff is saint or sinner, isn't the free expression angle pretty easy to ascertain here? Does a legal mind really need to get "absorbed?"
The case wouldn't have raised eyebrows had it followed the standard libel or defamation lines. It appears instead to have been some kind of legal "end run."
If someone lied or defamed, fine, I can frame that in my thoughts, but when terms like "tortious interference" come into play, I get a headache.
We don't need esoteric terms to deal with First Amendment issues. Judge Reilly, could you maybe step aside for Judge Mathis?
I have no interest in north Minneapolis politics. There are personalities and antagonisms there that are foreign to my world, a world awash in the clean and fresh air of western Minnesota.
All I am is a new media advocate.
I want the pertinent issues to get sorted out fairly and logically.
The Hoff verdict came down in mid-March of 2011. It's like a gremlin scrambling around in our heads now - us media writers.
An appeal setback was reported on August 30.
Even though the court affirmed that Hoff wrote things that were true, the judgment came down against him. It was a jury decision.
Surely we can expect a reversal eventually.
(". . .and don't call me Shirley.")
Let's be lucid: The jurors determined that Hoff did not defame the aggrieved party.
Hoff's transgression in the eyes of the court was "tortious interference" - tortuous for me to consider.
The judgment is a nuisance that will command valuable attention that could be directed elsewhere. Lawyers will just make more money. Journalists are trying to keep this gremlin from getting wet.
John Hoff is a journalist. He is a 100 percent contemporary journalist because no ink or paper are involved. He has a neighborhood blog which is a cutting edge form of the craft.
I concede he may be a bit of a "bear with boxing gloves."
The door should be wide open for this type of journalism to thrive. Partly this is because the economics of ink-on-paper media is turning ever more grim. There is constant doomsaying about newspapers and printed communications in general.
Update: We've just learned of drastic measures with four major papers in the Deep South - downsizing to three print editions a week only. Let's not live in yesterday.
This is an important point to weigh in reflecting on the Hoff verdict, but not the primary one. The primary one is simple free expression.
The medium isn't the point. The point is communications.
Electronic communications have brought about a rapid and fascinating transformation in the media. The rapid nature of this might be the most striking - so rapid it might be leaving legal minds behind.
Legal professionals stand out because of their ability to put passion, emotions and "street judgment" aside. When someone says bloggers aren't journalists, I expect that to be coming from a guy sitting at the next table at McDonald's, not someone who spent a couple of years studying at William Mitchell.
And yet the seat of the pants style of thinking I'd associate with a casual conversation seems to have bubbled up here.
Hoff has a blog. Let me assert that the term "blog" maybe should be given a decent burial. Like the term "slob," it doesn't have a very good ring to it.
The term has no place. It sprouted in the early chapters of the Internet's history when everything done there seemed like a novelty.
The mechanics were more difficult to deal with then. Many "geeks" presided who seemed a breed apart from journalists.
The Internet in its early days seemed to be a stewing swamp of snake oil salesmen and conspiracy theorists. Of course they have rights anyway.
The rules of defamation and libel can always be trotted out. But defamation and libel weren't at the crux of the judgment in the Hoff matter.
It's not unusual that someone would try to use the legal system against Hoff. What's unusual is not only did this case see the light of day, i.e. not getting thrown out, but the party vs. Hoff won.
Pinch me to see if I'm dreaming.
I can't really say if Hoff is in the footsteps of Woodward and Bernstein, or not. He has gotten the Society of Professional Journalists (SPJ) in his corner.
Because if the judgment vs. Hoff is going to stand as any sort of legal precedent, there are clouds over our whole media universe.
If the Westboro Baptist Church can be allowed to continue doing their thing, most certainly we have to keep the door open for the John Hoffs of the world.
I assume the judge had the power to stop this case in its tracks. Instead she seemed to allow the kind of logic I cited earlier, i.e. that seat of the pants judgment where some everyman on the street intones "bloggers aren't journalists."
I hate to even waste any time taking apart this statement, but I guess I have to. A lot of people are going to waste their time now, time better spent on other matters, dismantling what the judge, with whom I'm respectfully disagreeing, seems to have wrought.
(When writing on a legal matter I'm going to try to respect everyone.)
The term "blog" (slob?) was born when the print media still ruled. Bloggers were those little mammals scurrying around the rocks when the dinosaurs still reigned.
But the dinosaurs "got big and fat," according to the character "Johnny" from the movie "Airplane." They sure were.
And what are we to make of that, besides "a hat, a brooch or a pterodactyl?"
Bloggers are simply writers who choose an online platform to report, opine and illuminate. It is steadily becoming the norm as the dinosaurs die out.
"But bloggers are amateurs."
Does getting paid to write confer some special wisdom? I would argue that when money gets involved, good judgment gets clouded.
I have read that the newsrooms of today have become meek and scared places. The trend of layoffs and downsizing has left them far less enabled to crusade journalistically.
Chain newspapers have become one big smiley face.
Selling advertising doesn't make a media venture any more virtuous. To the extent they ever were virtuous, it was in the days before online competition.
Online isn't encumbered by any of the fixed expenses that print must confront. Print is in steady retreat.
If the message from the Hoff case is that online is some sort of second class citizen, not with the standing of print, we're in a world of hurt.
Great Britain with its issues vs. the Murdochs (Newscorp) can tell you print has no special virtues.
What if print keeps fading to the point where it's merely vestigial? (It won't disappear completely.)
We had better ensure that the First Amendment is fully implemented with online, i.e. to no lesser extent than it has prevailed in other areas.
You can't yell "fire" in a crowded theater. But you can do what the Westboro Baptist Church does. The Supreme Court has ruled on that.
It's possible there has already been a chilling effect. But maybe not, because so many observers have considered the Hoff case an aberration, they aren't really scared of it.
What if Bod Woodward had said post-Watergate that "yes, the work of Carl Bernstein and myself brought down the Nixon administration," and "in the long view of things, it was for the better."
This likely didn't happen but it's not wild speculation. By the yardstick of the Hoff case, there's a legal imbroglio there.
Except that we're not to the finish line yet.
It's possible Hoff was just out-lawyered. That shouldn't be allowed to screw up our legal system. But the aberration is there and will need to be swatted aside. Lawyers will keep making money. Judge Mathis, where are you?
The Hoff case has already covered over two years. The people of north Minneapolis, where Hoff writes as an unattached (non-corporate) journalist, watched closely.
When I first read about the case I was jealous of Hoff because of the most appealing title of his website (blog). It's "The adventures of Johnny Northside."
Sounds like a Saturday morning cartoon from my childhood.
Surely Hoff will come out of this the victor.
(". . .and stop calling me Shirley.")
Maybe Randy Quaid could play him if a movie is ever made. The title of the movie is ready-made: the blog's title.
The whole protracted legal mess - a redundancy? - should have been nipped in the bud.
But then lawyers couldn't make money.
The mid-March (2011) ruling was for $60,000 against Hoff. There's $35,000 for lost wages and $25,000 for emotional distress.
Do you suppose the Westboro Baptist Church causes emotional distress?
The aggrieved party in the Hoff matter, Jerry Moore, was fired by the U of M in June of 2009, the day after an investigative Hoff post.
The jury found that statements made by Hoff in his blog were not false. The case had to penetrate through a legal thicket. It has been called a "trash tort."
The judge eventually allowed the perverse (in my view) judgment that Hoff "tortiously interfered with (the aggrieved party's) employment at the University."
"The award left media lawyers flabbergasted," David Brauer at Minnpost wrote.
Brauer quoted media lawyer John Borger: "If the statement was true, there should be no recovery."
The truth shall set you free?
Hoff's lawyer - get with it, guy - filed a motion for judgment as a matter of law.
The SPJ filed a motion to participate as amicus curiae.
Professional journalists advocating for a blogger?
Here's a question I haven't seen addressed: Why is Hoff being treated as if he had actual control over Moore's employment? It's the U that takes responsibility for this action. Was the U negligent in researching the background?
But the media and free expression questions are paramount.
Journalists of all kinds are waking up and smelling the coffee. Those who disparage "bloggers," having subscribed to a vague stereotype of those writers, have been scared into seeing reality.
Let's let Hoff himself shed light on this, hero or not: "I think they (the SPJ) realize bloggers and mainstream journalists all are part of the same media ecosystem, and an injury to one is an injury to all."
Here's a closing point from yours truly: The lines have all been blurring. That's why I argue so strongly that it's not even helpful having a term like "bloggers."
I have read that the term "computer" is fading due to all the new devices coming into the picture. "Blogging" is no longer some narrow niche from where conspiracy theorists can take jabs.
This should all be so clear to sharp legal minds, we shouldn't be getting dragged through the likes of the Johnny Hoff case.
Let's return to that guy sitting at the next table at McDonald's (i.e. the typical man on the street) who might say "newspaper reporters have standards, bloggers don't. Reporters have training, bloggers don't."
Let me assert strongly here that the only way to designate a protected class of "journalists" legally, is to have licensing.
Licensing of journalists will only happen, I suggest, when it can be conclusively proven that hell has frozen over. No sooner.
Licensing wouldn't confer job security. Those papers in the Deep South are going to be laying off lots of people. Is a laid-off journalist less able to show good judgment?
Blogging is merely a vehicle. An eminent scientist with a specialty might well establish a blog for the sharing of his/her expertise. Meanwhile a so-called professional reporter might write on this scientific topic once in a lifetime.
That's a problem with reporters. They write about subjects where they have no special background. It's just a job to them. Often they face an onerous deadline.
If I'm interested in that scientific topic, I'll go to that scientist's blog rather than read what a "reporter" regurgitates as part of his workday.
We can readily discard the stereotypes of irresponsible bloggers and responsible print writers. We all have defamation law to protect us anyway.
Online makes strides with each passing day. Print is shriveling.
Frederic Filloux cites the "melting iceberg syndrome" in connection to newspapers: "As an iceberg melts, the resulting change of shape can cause it to list gradually or to become unstable and topple over suddenly."
We have all become so liberated by online communications, we take it for granted. To remain liberated we need the same First Amendment protection as always.
I think it's amazing the Hoff case even made it this far, not having melted like an iceberg under the Kleig lights of sharp legal minds.
Personally I would be happier writing for money than not for money. But the ranks of those getting paid to write are thinning. They are running scared. They won't step on toes.
Chain newspapers take zero risks. They are the Pablum of the media menu. We have an example here in Morris, Minnesota.
"Professional" writing means you're fortunate enough to get a paycheck for generating material that gets wrapped around advertisements. The ads are the main mission.
What's the inherent value there?
It's the new media aficionados who are taking the lead for an informed citizenry. Hoff is just part of the pack. He'll succeed or fail based on the unrelenting "meritocracy" that guides such work.
Heaven help us if the verdict and subsequent appeal ruling stand up.
That would be a heckuva deal.
- Brian Williams - morris mn Minnesota - bwilly73@yahoo.com

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