That’s the question at the heart of a flurry of documents filed in a San Jose federal court over the past few weeks—and while the answer won't come in the instant dispute, the debate will weigh heavily on the lawyer-blogger during the defamation case pending against him in Texas.
Rick Frenkel lays out the background:
Starting in May of 2007, Frenkel created the PTT to report on issues of interest to the patent community and the general public. The PTT advocates reform of the patent law system; it does not “systematically attack judges, lawyers, and parties to lawsuits” as Movants claim. Initially, postings on the PTT were not signed.
Movants’ counsel, Raymond Niro (“Niro”), a lawyer specializing in intellectual property disputes, including patent cases, has a contrary editorial viewpoint that competes with the PTT. The two attorneys have traded lively, and sometimes heated, exchanges over patent issues; Niro in interviews with the press, and Frenkel on his website. Niro publicly alleged that a death threat aimed at him and his family was sponsored by the PTT, an allegation Frenkel denied. Niro also established a reward for anyone who would unmask the identity of the person behind the PTT, raising it from an initial offer of $5000 to $10,000 and finally $15,000 before Frenkel revealed himself as the author of the PTT. The reward, we understand, remains unclaimed.
Frenkel goes on to argue he’s a “non-party lawyer-journalist,” protected from compelled testimony by "the free press and speech protections of the First Amendment to the
United States Constitution, as recognized by the common law Reporter’s
Privilege doctrine, and the California Shield Law." Harris’ subpoena would compel him “to provide testimony and produce documents regarding confidential sources and unpublished information" protected by those laws, and is thus unjustified.
Frenkel cites Branzburg v. Hayes, a 1972 U.S. Supreme Court case that sets the rules on when a journalist can be subpoenaed, as well as the well-established California laws. Forced testimony “would result in a serious detriment to Frenkel’s future ability to gather and disseminate news,” he writes.
“The newsgathering efforts of a reporter such as Frenkel should not be made part of civil discovery between parties without a showing of the required elements set forth above… this type of burden is exactly what the federal and state common law and constitutional protections are designed to prevent.”
“Frenkel is and was engaged in the gathering and dissemination of news about intellectual property litigation on his Patent Troll Tracker website. The fact that Frenkel chose to disseminate news on a website, as opposed to a more traditional source of journalism, is irrelevant.”
What does Raymond Niro think of all this? He scarcely knows where to begin; the brief sizzles and jumps through Frenkel's various sins, calling him unqualified, unethical, threatening, a corporate stooge for Cisco, a writer of devilish anagrams and haikus, and most importantly, not a reporter. It also draws thin or non-existent connections between Frenkel, various Fish & Richardson attorneys (one of whom who appeared at a webinar with Frenkel; as in, the World Wide Web), and Google's Head of Patent and Patent Strategy, Michelle Lee. (Frenkel says he's never spoken with Lee, who is Google's top patent lawyer; Ray Niro, by way of contrast, sends correspondence her way quite often, if you catch my drift.)
Sin #1: Unqualified. Frenkel is an engineer and a lawyer, writes Niro, but...
"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist. He has no public relations responsibilities at Cisco. Indeed, after he was finally forced to admit he was the author of the ‘patent troll tracker’ blog, Cisco promptly muzzled him by insisting that his blog could continue to operate 'by invitation only.'"
(Frenkel shut down his blog only after he was sued twice for defamation; Cisco denied having “muzzled” him, writing in court briefs that Frenkel’s decision to shut the blog down was “his alone.”)
Sin #2: Uncivil. Niro doesn't care for Frenkel’s sense of humor or wordplay. The brief condemns "offensive haikus" such as these:
Scott Harris lost his job ‘cause he wanted his Fish
And to eat it too.
Pesky ethics rules. Conflicts mean nothing to trolls
Help me, Ray, Help me!
And the anagrams... Those damned anagrams! ("Niro Scavone = Naive? Or Cons?")
Sin #3: Corporate stooge. Harris/Niro/ICR write:
He was not engaged in “gathering news” but, rather, in promulgating
propaganda favorable to his employer Cisco, in utter contempt for the
ethical cannons that bind real reporters.
Frenkel’s covert attempts to promote the interests of Cisco make his blog into what
amounts
to a paid advertisement for Cisco – and Cisco has effectively admitted
as much… The shield law does not extend to Frenkel’s puffing for a
commercial business such as Cisco.
Sin #4: Unethical. Frenkel’s blog is the “antithesis of journalism," writes Niro:
"Nowhere, however, does Frenkel confront or even acknowledge the principle that there is more to being a "reporter" who is gathering and disseminating "news" than typing words into a computer and broadcasting them to all and sundry over the internet.
It is for good reason that Frenkel and Cisco don’t examine too closely (or at all) what it means to be a "reporter." Whatever terms might be applied to Frenkel’s activities (and some of the labels that come to mind are not very complimentary), "reporting the news" isn’t one of them.
As set forth in the Statement of Facts, above, Frenkel has no education nor training whatever as a journalist. If he had, he would have learned that his activities in connection with his “troll tracker” blog were the diametrical opposite of what “reporters” do.
Then Niro pulls out the Society of Professional Journalists' Code of Ethics, along with an ethics code from U.S.C.’s School of Journalism, and says that Frenkel regularly violated ethical principles of journalism, by 1) writing anonymously, 2) not revealing his sources (!), 3) writing unfair headlines, 4) concealing conflicts of interest that stemmed from his position at Cisco, 5) engaging in advocacy, and 6) being annoying. They lay it all out in an amazing chart that compares "What Journalistic Ethics Require" with "What Frenkel The Self-Proclaimed 'Reporter' Actually Did." (see pages 11-12 of ICR/Harris response brief, linked below.)
But of course, nobody needs a license or a degree to be a journalist (good thing, too.)
Even before the age of 'participatory media' that's now blurring all the lines, the practice of finding and verifying facts is just that—a practice, one that's open to anyone in a free country.
And "propaganda" is in the eye of the beholder. Since I would maintain that
anyone can be a journalist—even if you write articles favorable to your
employer, (or unfavorable!) and even if they don’t have “formal training” (which until
recently nobody had).
As to advocacy, there’s a long tradition of advocacy reporting that’s not any less legitimate than "mainstream" reporting, and having an opinion and expressing it doesn’t boot you out of the realm of journalism (and what a lofty realm it sounds like in this brief!) Whether or not a reporter has followed the SPJ "rules" doesn't have much to do, in my opinion, with whether they deserve protection or not. There simply is no journalism rulebook. Ethics policies are debated all the time, and change over time.
But the most backwards argument is that to qualify as a “real”reporter Frenkel would have to reveal his sources. What an obscene misreading of these professional codes attached as exhibits. For Frenkel to reveal who sent him news tips, emails, or other correspondence would be a betrayal of trust that no responsible journalist would allow. This is the plain difference between being transparent and betraying your friends.
Putting aside the anonymity aspect, Frenkel’s blog could be thought of as quite conservative, journalistically speaking. From day one he insisted that he would refuse to
receive any non-public documents; some very successful reporters have
built careers on making it clear they do accept such paperwork
(e.g., the leaked grand jury transcripts that led to the BALCO
stories). The PTT reporting was almost entirely opinion and public
documents, and those who did fact-check his research, as Patently-O
author Dennis Crouch did, found it accurate.
It’s a good question
how far the reporter’s privilege should be extended; not everyone with
a domain name can be allowed to evade a civil subpoena. But I don’t
think Frenkel’s blog was even a close call. There’s no doubt in my mind that Frenkel was reporting the news, and will continue to be if and when he re-starts his blog; more than anything, he was my competitor.
Finally, anonymity. Writing anonymously, by definition, flunks the “transparency” test of—and the modifiers are important here!—contemporary, mainstream, professional
journalism. But of course there is a long and proud historical
tradition of writing anonymously about public issues, from the
Federalist Papers onwards, well covered in Frenkel’s brief and by advocacy
groups like EFF, which has defended anonymous bloggers in court. (Is it any surprise that a blogger with a $15,000 bounty on him would start sporting the EFF Bloggers' Rights logo?)
But there's a lot more to say about anonymous speech in the Internet age; and I would argue that the Patent Troll Tracker blog, more than other publications I've seen, raises weighty questions about anonymity, media, and power in the digital age.
That's all be too much for this already long post on an already long day. There's still some sunlight in San Francisco, and I need to catch a bit of it. Tomorrow I'll publish the fourth and final installment of this Patent Troll Tracker series: anonymity, the media, and the JPEG patent.
Other posts in this series:
- Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
- Part Two: Patent Troll Tracker speaks—and vows to return.
- Part Four: Patent Troll Tracker and the Reporter's Privilege.
Documents related to the Patent Troll Tracker subpoena:
Cisco lawyer who blogged anonymously as the Patent Troll Tracker, settled the case Monday night, shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of Frenkel and Cisco in order for Albritton to win the punitive damages he was seeking from the tech giant. 
In my 
Part Two: The life, death, and promised re-birth of the Patent Troll Tracker blog. In Rick Frenkel's own words. 
Cisco and Frenkel, in turn, claimed that Niro lawyers were using an overly-broad subpoena as a back-door route to uncovering evidence that could be used in the Arkansas and Texas 
Harris' lawyers say they gave up on this deposition because Frenkel swore in his deposition that he had "no communication with anybody at Fish & Richardson concerning the underlying litigation and the related parties." That cancels the May 13 hearing that was scheduled in San Jose where Harris' lawyers would have faced off with attorneys representing Cisco and Frenkel.
