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TODD EPP: Are bloggers journalists?

By Todd Epp

Northern Plains News Service

Are bloggers -- those pesky, pajama-wearing screed writers -- journalists?

In South Dakota, at least one state judge says they are.

Besides captivating the South Dakota political world recently, the State of South Dakota v. Daniel Willard misdemeanor "robo-call" trial in Madison also had the South Dakota blogosphere abuzz. Circuit Court Judge Vincent Foley ruled that blogger Pat Powers, owner of the conservative South Dakota War College blog, was a journalist due to his previous reporting on the matter.

"I am of the opinion that bloggers are journalists in the modern sense of the world," read a quote from Judge Foley.

Powers has written about the case of Willard, who was convicted of sending robo-calls attacking Republican political leaders before the 2012 election without disclaimers required by state law.

Powers cited anonymous sources in some blog posts giving updates on the criminal investigation. His attorney argued that he should not have to testify in Willard's trial because Powers is a journalist, protected by the First Amendment from having to divulge confidential sources.

"Mr. Powers has operated his news website since 2005. I think he squarely fits within a criteria as a journalist," attorney Joel Arends argued at a pretrial hearing. "Any news gathering conducted by Mr. Powers is protected by the reporter's privilege."

Surprisingly, even some South Dakota bloggers thought Powers should not be considered a journalist, because his site is largely pro-Republican.

In journalism and legal circles in the state, Judge Foley's ruling was hailed as a broadening of First Amendment rights for all South Dakotans, or as not that important.

One former South Dakota working journalist and mass communications professor believes the ruling makes sense and springs from American history.

"Like the pamphleteering of the Revolutionary War era, when people could inexpensively have their ideas printed, the Internet today allows online publication inexpensively, circumventing the major media gatekeepers," said Dr. Michael Marek, professor of mass communications at Wayne State College (Neb.) and a former public and commercial radio reporter in Brookings and Aberdeen.

"Many blogs and other types of websites clearly do journalism and are often not connected with mainstream conventional mass media," he added.

Another former South Dakota journalist and First Amendment lawyer believes Judge Foley's ruling in the Willard case is not a significant departure from the current state of the law regarding journalists.

"I don't think it changes the law," said Tim Gebhart, an attorney at the Davenport Evans law firm in Sioux Falls and a former UPI and Rapid City Journal reporter. "I think Judge Foley recognized generally accepted law on privileges courts have applied to journalists isn't dependent on title but facts. From what I understand, Powers published information on a topic of public interest provided him based on confidentiality."

Gebhart says he doesn't believe the Willard case will have significant value as a precedent in future South Dakota cases. However, since the court did not require Powers to testify and disclose confidential information he gathered for his stories in the hearing, Gebhart believes that is important.

"I think the same general rule should apply to anyone who disseminates information to the public obtained from confidential sources, regardless of their label or title," Gebhart said.

Marek agrees with Gebhart but goes a step further.

"In this age of citizen journalism, we are much better off extending journalistic protections to more people rather than fewer," Marek said. "It would not be out of line to say that anybody can be a journalist when they are doing journalistic-type things."

Nonetheless, both Marek and Gebhart are uncomfortable with any court having to decide who is -- and isn't -- a journalist.

"The framers of the Constitution would certainly have been unhappy with the idea of the courts deciding who is a journalist and who is not," Marek said. "Remember, they said 'the press,' meaning the printing press, effectively including those pamphleteers as well as establishment newspapers."

Gebhart wonders where the journalist line lies.

"Is a Tumblr blog, functioning as an online diary, a journalist?" Gebhart wonders. "It is a dicey proposition for the courts to be deciding whether that line exists, and if so, where it is drawn."

So, who is a journalist?

Gebhart says that while a journalist may be a blogger, not all bloggers are journalists.

"Gathering news and disseminating it to the public is the key for me," Gebhart said. "If bloggers are doing that, then their information regarding confidential sources is worthy of protection. If they're simply expressing personal opinion or navel gazing, it's entirely different."

For Marek, it's how the blogger or citizen approaches their writing and reporting.

"In my opinion, a journalist is not defined by the channel of communication used, but rather is someone who uses the principles of journalism, such as quoting sources and quoting them accurately, not plagiarizing and similar fundamental practices," Marek said.

Meanwhile, Willard's attorney has noted that they plan to appeal the Lake County jury's decision to the South Dakota Supreme Court. Depending upon how the parties present the issues on appeal, the Supreme Court may have an opportunity to further clarify who is a journalist in South Dakota.