Shielding Social Media?

By Chris Michaels, Senior Account Manager, Fusion PR (@chrisamichaels)

This morning, I awoke to some news that disturbed me when it comes to the ideals of media law, the first amendment and the freedom (or protection) of the press.

I’m certain by now that just about anyone in an industrial country has heard about the recent “leaked” iPhone that was acquired and unveiled by the editors at Gizmodo.com. (Notice, I selected the word “editors” intentionally). Over the weekend however, police kicked down this editor’s door to serve a search warrant and seized several computers, hard drives and other items, including a brand new personal iPad. What’s even scarier is that the search warrant cited potential federal charges.

The incident begs the question, “should bloggers be protected under the same ‘Shield Laws’ that protect traditional journalists?”

Here are some of the facts: Jason Chen writes for a major outlet which maintains a monthly average readership of 1.5 million – more than the circulation of many “traditional” publications. Gizmodo is also a part of Gawker Media, one of the largest publishers and syndicators of Internet content. Jason writes full-time for the site as his primary source of income. In the same vein that David Pogue, Rob Pegoraro or Walt Mossberg write full-time for traditional publications (and online blogs and personal books), it’s hard to say that that he’s not a full-time journalist.

So what is it that really differentiates the blogosphere from traditional media? The quick answer is technology and the often laissez-faire approach to journalistic ethics. (For our friends in the blogosphere who DO uphold the highest standards of ethics, thank you for setting the bar). The more complicated answer is that the laws that were written to protect the media were created at the same time that the corporate media itself was in its infancy.

In a discussion with First Amendment attorney, Marc Randazza, he mentions that most of the laws that could protect bloggers today, especially those that are full-time bloggers like Jason, are incredibly antiquated. “Judges are not as comfortable with new technology as media professionals are,” he noted. Without copious amicus briefs or a vast knowledge of technology itself, Mr. Randazza cautions bloggers not to expect Judges to understand how to apply the laws that have failed to keep up with the changes in technology.

Even the Federal courts have previously looked at the issue. In 2005, Josh Wolf, a blogger (and self described journalist), was sentenced to a month in jail by a federal judge after refusing to turn over video captured of the G8 protests, where a police vehicle was damaged. Traditional journalists have typically received protection from doing just that, but because it was electronic media, apparently the rules didn’t apply.

The arguments are there to extend protection to bloggers and the lines have quite often been blurred between traditional and new media. Nonetheless, with Gizmodo’s counter suit about the over-reach of California’s Rapid Enforcement Allied Computer Team (REACT) computer crime task force and the protection under CA Shield Laws, it’s going to be interesting to watch what unfolds.

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