In my previous post in this series, I wrote about how attorney Scott Harris' aborted attempt to subpoena Patent Troll Tracker blogger Rick Frenkel raised the question of "Who is a journalist?" in the digital age. To me, the PTT blog was a clear case of online journalism.
But there are actually three questions here:
1) Is Frenkel a reporter?
2) Does he get a reporter's legal protections?
3) Should he get a reporter's legal protections?
After thinking things over, I should clarify that I'm proposing to answer only the first question. The second question is a legal one that I'll leave to the lawyers; and the third is a philosophical and policy question that I honestly don't know the answer to.
1) Is Frenkel a reporter?
I think so. Journalism is the practice of finding, verifying, and publishing factual information, and nobody needs a license—or permission—to do it. Journalism can be combined with advocacy or partisanship, or it can avoid taking sides. In my view, the PTT blog was a great example of advocacy journalism.
2) Does Frenkel get a reporter's legal protections?
Very different question, and I don't know the answer. The attempt to subpoena Frenkel was dropped, so this won't be hashed out in San Jose. But even professional reporters like the SF Chronicle reporters who broke the baseball steroids story were not protected against a subpoena from a federal grand jury.
Civil subpoenas are a different matter, but the state of reporters' legal privileges is a moving target. Just two days ago, the Reporter's Committee for Freedom of the Press updated their report on the reporter's privilege in federal courts. California's Reporter Shield Law has been applied broadly by state courts; but in federal courts, any journalist's rights are uncertain.
"That's the most compelling argument for why you do need a federal shield law," says Thomas Burke, a media lawyer who teaches law and ethics at UC Berkeley's Graduate School of Journalism. "You can practice journalism online as a blogger, and you have no idea when you’re going to get to use the California shield law." (disclosure: I was one of Burke's students years ago)
3) Should Frenkel get a reporter's legal protections?
The more I think about this one, the more complicated it gets. First, was Frenkel writing for Cisco or independently? His opponents say PTT was an ongoing corporate PR campaign; Cisco and Frenkel strenuously disagree, and say Frenkel was independent. Frenkel did share some positions with his employer; both have advocated for Congress to pass patent reform legislation (thus far, to no avail). And some Cisco employees did offer the blog up as suggested reading for professional reporters. But PTT was too raw and unchecked to have been a truly corporate project; it just wasn't that slick, frankly.
But leave Frenkel and Cisco aside for a moment. What if a corporation did openly sponsor its own news-reporting blog? If journalism is a practice, any company can choose to pay for journalism, advocacy or otherwise. But should the author of a corporate news blog get immunity from civil subpoenas?
What about Google's many corporate blogs? They regularly publish timely and newsworthy information; but because the information is entirely internal, it wouldn't seem to meet the "discipline of verification" described by Rosenstiel & Kovach.
What about non-profits like EFF? That group maintains a blog that reports heavily on EFF work, including original research on issues like the RIAA lawsuits.
What about Red Hat's magazine and blog? A writer there bemoaned the loss of PTT, calling it "a great blog that did most of my work for me." (emphasis mine)
These are looming issues for us all in the age of participatory media. The saga of the Patent Troll Tracker has shown they can't be avoided.
Other posts in this series:
- Part One: Scott Harris' lawyers drop Troll Tracker deposition demand
- Part Two: Troll Tracker speaks, and vows to return
- Part Three: Is the Patent Troll Tracker a reporter?
I'll write about new events in the defamation lawsuits against Frenkel and Cisco later this week, but I'll leave this four-part series as is, since it all relates to the PTT subpoena attempt and ensuing questions about who is a journalist.
Personal footnote: As a reporter myself, there are lots of issues I'd rather not express an opinion about; but when it comes to questions of journalistic ethics and practice, I think the discussion creates transparency and furthers the cause of balanced journalism. Since every major journalism organization has published ethics policies, every reporter's boss has a position even if the reporter doesn't; to claim total neutrality here would seem, to me, disingenuous.
Photo credit: The photo above comes from a friend of Frenkel who asked not to be named.