The new media under "territorial" law now

Here we go again. The legal system is thrashing away like someone in the water who doesn't know how to swim.

It's not for lack of competence, it's for lack of precedent.

Judges are smart people and they know our world changes. But the changes in the media make for no easy transition. The changes are profound and ultimately a huge blessing.
As with all blessings we take it for granted after a while. We habitually go online to consume news and information. Mostly it's free.

The stuff we consume is all over the map but it's organized in a pretty reliable meritocracy. We have to depend on people using fundamentally good judgment. Of course, that hope breaks down pretty quickly. We are so human an animal. That's why we have judges and juries.

And now there's another legal case bringing considerable talk about journalism in our electronic future. The judge is Marco Hernandez. He's probably a sage individual.

But he's looking out over pretty undeveloped terrain - a lack of case law - and it reminds me of the Clint Eastwood movies about territorial government. A lot of us thought these were just westerns. But the movies were inspired by the painful, seminal stages of the birth of our full nation.

A "territory" wasn't quite ready to be a state. It was civilized but not quite to the point where law could be installed reliably. It was ramshackle but it was headed in the right direction.

We want to make sure journalism is headed in the right direction. The problem is that the changes we're seeing are so profound. Even the judge seems floundering in some of his language.

At the focal point is a blogger. Blogging can bring out the best and worst in us, so it just reflects the human condition.

Again, I hate the term. "Blog" rhymes with slob and there are stereotypes that grew up in the early stages of the Internet. The corporate mainstream media sniffed. Then the corporate media found their legs were being taken out from under them.

We were once so dependent on the corporate media because it affirmed our democracy. The Fourth Estate indeed!

We were naive as a society to think these big institutions existed and thrived because of their news reporting and investigations. The corporate media are undergirded by advertising. I'll quote a media writer whose name escapes me now: "Newspapers have never been in the business of selling the news, they are in business to sell print advertising."

As businesses use the new media to find more economical and effective ways of reaching customers, they can leapfrog over newspapers which once used their monopoly status to build a heckuva gravy train. Thus, papers had the luxury of doing things like investigating Watergate.

Today Watergate would unravel through layers in the new media. A precursor was the Monica Lewinsky scandal.

Actually, so pervasive are these new media tools, Watergate never would have reached the extent it did. Democratized media encourages accountability in a big way.

The best-known journalist connected to the Jerry Sandusky scandal might be Buzz Bissinger who writes for the Daily Beast.

Joe Scarborough ("Morning Joe") says one of the big blessings of the new media universe is that "you don't have to be let past the velvet rope" to practice real journalism.

To repeat: it's a meritocracy.

Recently I have posted on deficiencies of a sports department of an area daily newspaper. And yet by our traditional definitions, the guys over there are "journalists" and I'm not.

Definitions and perceptions are at issue in the new legal case. It springs from the Pacific Northwest. The blogger is Crystal Cox.

From what I have read on the Forbes website, Cox is not a sympathetic figure. There should be some sort of sanctions against what she does online which perhaps smacks of some sort of OCD. That said, we must be very careful about what sort of legal precedent is set.

It's one thing to share casual opinions and another to lay down legal precedent. Everyone agrees this case raises questions about press protections and the nature of the press in our new electronic age.

Cox defamed a fellow named Kevin Padrick, according to a Federal jury. At issue are suggestions (from Cox) of fraud, bribery and other crimes. The monetary award: $2.5 million.

Padrick says "Crystal Cox has no journalistic standards."

Hoo boy, here we go. Media lawyers worry that not only are bloggers endangered by the ruling, there could be spillover into traditional media. Because after all, all the lines are blurring.

Judge Hernandez ruled that Cox doesn't qualify for certain protections given journalists. He rejected Cox's claim that she is in fact "media." He ruled that the eccentric (I would say) blogger isn't subject to Oregon's retraction statute or shield laws. Newspapers and broadcasters have this fall-back option.

The fundamental problem here is drawing some sort of line between, well, "legitimate media" (or "corporate media") and "unattached" journalists.

I could play around with terms further. That's because of ambiguity that makes us scramble to draw an accurate picture.
Ultimately the legal community will have none of this. Casual or knee-jerk judgment will not do. The legal community strives for precision, precedent and consistency.

There will be considerable hair-pulling before this process is over. That's why these legal people get paid the big bucks.

A huge problem in showing deference to the traditional media is that it's on the run, shriveling up as we speak. Many say we should now define "journalism" as a practice - is someone practicing journalism? - rather than using affiliations, background or education.

The judge in the Cox case makes the mistake, I feel, of falling back on the old notions. He said that in the Cox case, there is no evidence of "any education in journalism, any credentials or proof of affiliation with any recognized news entity, or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest."

I realize the judge is groping. We're trying to make a territory into a state. It's a challenge.

The judge is confusing generally held ideals of journalism with absolute rules which if violated could lead to a civil sanction.

People who can properly be called journalists really come in all stripes, and these include advocacy folks.

Must a journalist, legally defined, have "education (formal)" in journalism? Heavens, I hope not. It's not like practicing dentistry. Can't an English major describe the world around him/her and be considered a "journalist?"

As far as "affiliation with any recognized news entity," my God, these "entities" are laying people off all the time. They're running scared. They're meek. We don't want to rely on them so much any more.

Let's look to the likes of Bissinger.

The judge mentions "credentials." Is he implying that maybe journalists should be licensed? Joe Scarborough once suggested (hitting the nail right on the head) that the only way to create a legally recognized class of journalists is licensing. Of course this whole notion is repellent.

I needn't elaborate.

I once described Johnny "Northside" Hoff, the Minnesota blogger in his own legal imbroglio, as "a bear with boxing gloves." Cox looks like a blogger with a machine gun.

We mustn't be surprised that some online practitioners are going to push the envelope. It's how the legal system reacts that we must watch in very sober and serious fashion.

We're trying to leave our territorial status behind.

- Brian Williams - morris mn Minnesota - bwilly73@yahoo.com