Obsidian Financial Group, Llc v. Cox and Reformulating Shield Laws to Protects Digital Journalism in an Evolving Media World

• Publication year: 2011

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 13 N.C. J.L. & TECH. ON. 287 (2012)

OBSIDIAN FINANCIAL GROUP, LLC V. COX AND REFORMULATING SHIELD LAWS TO PROTECT DIGITAL JOURNALISM IN AN EVOLVING MEDIA WORLD

John J. Dougherty*

Though “journalism” is an amorphous term capable of various meanings, its traditional media are familiar. Yet, if the progression in media from print to radio to broadcast and cable teaches a lesson, it is that dissemination technology is rarely stagnant. As the seemingly endless procession of new media made possible by digital communication continues, the manner by which works of journalism are disseminated is also changing. Whether this evolution in media creates a better informed and more capable citizenry is a fair subject for debate. What is less debatable is that the blossoming of digital media is testing legal frameworks, particularly in the realm of journalistic privileges. Shield laws, also known as reporters’ privileges, have existed in the United States for more than a century as a way to foster the free flow of information. While questions have long persisted about how to properly administer shield law protection, the rapid pace of media evolution is exposing the shortcomings in many existing statutory constructions and interpretations. This Recent Development casts a critical look at a 2011 Oregon shield law decision Obsidian Financial Group, LLC v. Cox. Presenting Obsidian as an example of problematic statutory drafting and interpretation, this Recent Development seeks to introduce a more sustainable, medium- neutral model for shield law protection.

1. INTRODUCTION

   It is a Tuesday morning in late September. You have just tweeted a link to your story regarding last night’s school board

   
   

   * J.D. / M.A. in Sports Administration Candidate, University of North Carolina at Chapel Hill, 2014.

   
   

   287

   
   

   meeting and are now looking over the town council’s agenda for tonight. Your eyes glaze over upon viewing the words “proposed speed table construction” and “dog collar ordinance.” How are you supposed to grow a readership with such tedium? In spite of your commendable idealism, you once again begin to question the wisdom of dropping out of law school to start blogging about local events. Just as you are cursing your luck and wholeheartedly wishing for a break, your cell phone buzzes. It is a number you do not recognize. The voice on the other end is familiar but barely audible. You catch something about the mayor and ask her to speak up. She repeats herself as you press the phone against your ear and frantically reach for a pen. As the words unravel, you recognize the voice. Then it stops. “Hello? Hello?” you plead. The grave voice slowly continues and presents you with an interesting but risky offer. She’ll provide you everything you need to know, but only for a price—complete anonymity.

   Currently, there is no federal shield law or reporters’ privilege statute in place that gives news reporters the right to refuse to testify in federal court as to information or sources of information obtained during their news gathering and dissemination process.1 Without a privilege, “a reporter may be compelled to testify in legal, administrative, or other governmental proceedings.”2 Reporters often resist these compelled disclosures, particularly when they jeopardize the confidentiality they have promised to their sources.3 The last significant attempt to pass a federal privilege law for reporters stalled in the Senate in 2009.4 Although

   
   

   1. Legal Protections for Sources and Source Material, CITIZEN MEDIA L. PROJECT, http://www.citmedialaw.org/legal-guide/legal-protections-sources- and-source-material (last visited Feb. 12, 2012).

   2. HENRY COHEN, CONG. RESEARCH SERV., RL 31340, JOURNALISTS’ PRIVILEGE TO WITHHOLD INFORMATION IN JUDICIAL AND OTHER PROCEEDINGS:

      STATE SHIELD STATUTES 1 (2007).

   3. See MARC A. FRANKLIN ET AL., MASS MEDIA LAW 451 (8th ed. 2011).

   4. James C. Goodale et al., Reporter’s Privilege: Recent Developments,

      PRACTISING LAW INSTITUTE 223, 236 (2010–11) (stating that in 2009, S. 449

      was amended to provide for certain national security qualifications and shortly after received the endorsement of the Obama administration and approval by the Senate Judiciary Committee).

      
      

      there were discussions in 2011 about amending and re-proposing the bill,5 the outlook is not promising.6 In the wake of the WikiLeaks7 scandal and the recent economic crisis, the prospect of a federal shield law has become less politically popular.8

      In the absence of a federal shield law, which would standardize protection in federal courts and conceivably serve as a national statutory model, the current legal structure creates a lack of uniformity in journalist protection. Federal circuits have split on the privilege issue9 and unique statutes exist in many states.10 Even in states where statutory protection is provided to reporters generally, questions persist about who and what qualifies for protection. Many states’ shield laws pre-date the Internet11 or specify media for protection to the exclusion of the Internet.12 In states that do not limit their statutes to prescribed forms of media, protection is often still difficult. Statutes in these states typically seek to define what characterizes a professional journalist and often exclude the attributes of bloggers or online reporters.13 As a

      
      

   5. J.C. Derrick, Federal Shield Law Introduced in House Once More, REP. COMMITTEE FOR FREEDOM PRESS (Sept. 19, 2011), http://www.rcfp.org/ node/98369.

   6. Goodale et al., supra note 4, at 236.

   7. See generally Fareed Khan, Wikileaks, N. Y. TIMES, http://topics. nytimes.com/top/reference/timestopics/organizations/w/wikileaks/index.html

      (last updated Feb. 27, 2012).

   8. Goodale et al., supra note 4, at 236.

   9. See, e.g., Laura Durity, Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite the Distribution Medium, 2006 DUKE L. & TECH. REV. 11, 18 (2006).

   10. State-by-State Guide to the Reporter’s Privilege for Student Media,

       STUDENT PRESS L. CTR. (2010), http://www.splc.org/knowyourrights/ legalresearch.asp?id=60.

   11. See, e.g., ALA. CODE § 12-21-142 (1975) (exempting news-gathering persons from disclosing sources).

   12. See, e.g., GA. CODE ANN. § 24-9-30 (1990) (“Dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast

       shall have a qualified privilege.”).

   13. See, e.g., DEL. CODE ANN. tit.10, § 4320 (2002) (defining a journalist as one “earning his or her principal livelihood by, or in each of the preceding 3 weeks

       or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the

       
       

       result of these challenges, online journalists, bloggers, and other “new media”14 users find themselves lacking clear legal guidance and are especially vulnerable in today’s shield law landscape.

       The 2011 case of Obsidian Financial Group, LLC v. Cox15 exemplifies this lack of clarity.16 In that case, Crystal Cox, a libel defendant who operated a blog and considered herself an investigative journalist, was held not to be a media defendant for the purposes of shield law or libel protection.17 While the case’s outcome itself may not be shocking or objectively incorrect, the reasoning employed to make the determination, based largely on Cox’s use of the Internet as a medium and her lack of professional credentials or education,18 could potentially threaten the development of online reporting. Narrow statutory constructions and interpretations like those present in Obsidian act as a stumbling block to legal protection for online media during a formative time in their development.

       As technology evolves, the modes of journalism and our definition of who is a modern journalist are also changing. Recent history has demonstrated that the investigative and reporting functions once reserved for Walter Cronkite19 and The Gray Lady20

       
       

       practice”); FLA. STAT. ANN. § 90.5015 (1998) (requiring that one be “working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine”).

   14. See, e.g., New Media, WEBOPEDIA, http://www.webopedia.com/TERM/N/ new_media.html (last visited Feb. 12, 2012).

   15 No. CV-11-57-HZ, 2011 WL 5999334 (D. Or. Nov. 30, 2011).

   16 Id. at *1. 17 Id. at *5. 18 Id.

   1. About Walter Cronkite, PBS (July 26, 2006), http://www.pbs.org/wnet/ americanmasters/episodes/walter-cronkite/about-walter-cronkite/561/.

   2. A nickname for The New York Times newspaper, referring to its historical tendency to present a higher-than-usual proportion of text to graphics. The New

      York Times Company Profile and Media Properties, MEDIA OWNERS, http://www.mediaowners.com/company/newyorktimes.html (last visited Mar.

      30, 2012).

      
      

      can today be performed perhaps just as well via blogs,21 Twitter feeds,22 and first-hand citizen journalists. Trends indicate that new forms of journalism have gained traction among America’s news consuming populous, while newspapers continue to fall by the wayside.23 If this trend is to continue its progression, a new conception of journalism will need to take hold in the shield law context. Setting aside the unlikely prospect of a federal exemplar, a solid first step in the process would be an update of state statutes that currently exclude online journalists. A more sustainable solution, however, necessitates more than amending statutory language to suit contemporary needs. It requires an entirely new model under which to judge the work of journalism.

      This Recent Development aims to explain the complexities present in creating shield laws that adequately protect the modern state of journalism and to propose a new, medium-neutral model to account for evolutions in the news gathering process. Part II explores the history and objectives of shield law protection, while Part III chronicles the evolution of journalism’s media. Part IV highlights a 2011 shield law decision that displays a frightfully outdated view of journalism. Parts V and VI survey diverse approaches federal

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