Are Bloggers Journalists? First Amendment Protection

The short answer: the First Amendment protects the press as a function

There is no single legal definition of "journalist" that works everywhere ^[1]. The test depends on the question you face. This guide covers three: defamation, subpoenas, and state shield laws.

On defamation, one federal appeals court has been clear. The Ninth Circuit said First Amendment protections do not turn on whether the defendant was a trained journalist, was formally affiliated with traditional news entities, or engaged in conflict-of-interest disclosure ^[2].

On shield laws, the picture is mixed. New York ties its definition to gain or livelihood and a professional tie to a news medium ^[3]. Texas looks at livelihood or financial gain ^[4]. Florida's statutory privilege applies only to "professional journalists." ^[1]

What has the Supreme Court said about "the press"?

The Supreme Court has used a wide lens. In Lovell v. City of Griffin (1938), it wrote that the press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion ^[5].

The Court added that the liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets ^[5].

Branzburg v. Hayes (1972) points the same way. The Court observed that the informative function claimed by the organized press is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists ^[6].

It also described the traditional doctrine that liberty of the press belongs to the lonely pamphleteer who uses carbon paper or a mimeograph just as much as to the large metropolitan publisher ^[6].

Read these passages for what they are. They describe who the press is. They do not say a press label shields you from every legal demand. We cover those limits below.

What did Obsidian Finance v. Cox decide for bloggers?

Obsidian Finance Group v. Cox (2014) is a key ruling on bloggers and defamation. The Ninth Circuit called it a question of first impression: what First Amendment protections a blogger has when sued for defamation ^[2].

The court held that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages ^[2].

The court then explained why job title does not control. Citing a Supreme Court warning, it called a First Amendment distinction between the institutional press and other speakers unworkable ^[2].

It said the First Amendment touchstones in defamation cases are the plaintiff's public-figure status and the public importance of the statement, not the identity of the speaker ^[2].

In that case, the court found the blogger's allegations about a court-appointed bankruptcy trustee were a matter of public concern ^[2].

You can read the opinion yourself below.

Document · U.S. Court of Appeals for the Ninth Circuit

Obsidian Finance Group, LLC v. Cox, No. 12-35238 (9th Cir. 2014)

Open at cdn.ca9.uscourts.gov

Document from U.S. Court of Appeals for the Ninth Circuit. Open at cdn.ca9.uscourts.gov. Content from cdn.ca9.uscourts.gov loads only if you click.

Keep the scope in mind. This is a Ninth Circuit opinion about defamation ^[2]. It does not set the rule for every court or every legal question. Check what your own state and circuit have said.

Is there one legal definition of "journalist"?

No. The First Amendment cases above focus on speech and the press as a function. Shield laws are different. Each state writes its own definition, and federal courts apply their own tests ^[1].

The Reporters Committee for Freedom of the Press keeps a compendium that sorts out who qualifies as a reporter, by circuit and state ^[1]. Use it as a starting map, then confirm the current law.

If you want background on the "who is a journalist" debate, the panel below is a useful listen. It is an older recording, so treat it as discussion, not current legal guidance.

Video from New Jersey SPJ (YouTube). Open at youtube.com. Content from youtube.com loads only if you click.

How do state shield laws define a journalist?

A shield law limits when someone can force a journalist to testify or hand over material. The definition of "journalist" decides who gets in. Three examples show how much the wording varies.

Texas

Texas defines a journalist as a person who, for a substantial portion of their livelihood or for substantial financial gain, gathers, writes, edits, reports, investigates, or publishes news or information, among other listed activities ^[4].

The Texas statute also covers a news medium. That includes an Internet company or provider that disseminates news or information to the public by any means ^[4].

If you publish as a side project, read the livelihood and financial-gain wording against your own situation. Check the statute text or ask a lawyer.

New York

New York defines a professional journalist as someone who, for gain or livelihood, gathers, prepares, writes, edits, films, tapes, or photographs news intended for a newspaper, magazine, news agency, press association, or wire service, among other listed outlets ^[3].

The person must perform that function as a regular employee or as someone otherwise professionally affiliated for gain or livelihood with the news medium ^[3].

New York's law also sets two levels of protection: absolute protection for confidential news and qualified protection for nonconfidential news ^[3].

Florida

According to the Reporters Committee's compendium, Florida's statutory privilege applies only to "professional journalists." ^[1] Look up how Florida courts read that phrase before you rely on it.

How do federal courts decide who gets the reporter's privilege?

Federal courts use tests, not licenses. Some look at what you were trying to do when you started.

The Second Circuit's von Bulow test, as the Reporters Committee quotes it, says whether a person is a journalist must be determined by the person's intent at the inception of the information-gathering process ^[7].

In the Second Circuit, the definition of reporter does not depend on working full-time or a minimum number of hours ^[1].

The Third Circuit has a similar intent-based test. It does not grant status to any person with a manuscript, a web page or a film. It requires intent at the inception of newsgathering to disseminate investigative news to the public ^[1].

Not every circuit has answered the question. The compendium says the Fifth Circuit has not decided who qualifies as a journalist for purposes of asserting the privilege ^[1].

For a longer look at shield laws and the First Amendment, this presentation features a media-law partner and a law professor.

What are the limits, and when should you call a lawyer?

Being treated as the press does not make you immune from every legal demand. Here are the main limits.

• Subpoenas still apply. In Branzburg, the Supreme Court reasoned that citizens generally are not constitutionally immune from grand jury subpoenas ^[6].
• Congress decides the federal rule. Branzburg left it to Congress to decide whether a federal statutory newsman's privilege is necessary and desirable and what standards it should have ^[6].
• Some privileges are qualified. In Texas, after notice and a hearing, a court may compel a journalist to testify or disclose information if the party seeking it makes a clear and specific showing of the statutory requirements ^[4].
• Protection can depend on the kind of material. New York gives absolute protection for confidential news and only qualified protection for nonconfidential news ^[3].
• Court rules can leave gaps. The Fifth Circuit has not decided who qualifies as a journalist for the privilege ^[1].
• Standards matter. In a 2005 analysis, the Reporters Committee said that if bloggers do not follow the standards print and broadcast journalists follow, their argument for being covered by the reporter's privilege may weaken ^[7].

This guide is general information, not legal advice. If you get a subpoena, a demand letter, or a lawsuit, talk to a lawyer who handles media law before you respond or hand anything over. Check your state's law, and use the Reporters Committee's compendium as a starting point ^[1].

How can you show that you work as a journalist?

Some tests look at intent when you began gathering information ^[7]. Others look at livelihood or professional affiliation ^[3]. You cannot fix every test, but you can keep good records.

1. Write down your purpose at the start. Note the story, your plan to publish, and the audience you aim to reach. Intent at the inception of newsgathering is what some courts examine ^[7].
2. Aim to disseminate news to the public. The Third Circuit requires intent at the inception to disseminate investigative news to the public ^[1].
3. Keep records of income from your reporting. Texas and New York both look at livelihood or gain ^[4]. ^[3]
4. Follow recognized newsroom standards. If you skip them, your argument for the privilege may weaken ^[7].
5. Look up your state's shield law and your circuit's test. Definitions vary by state and court ^[1].

If you want a way to document your work, read our guide to press credentials for independent reporters. A credential is a record of what you do. It does not replace checking your state's law and your circuit's test ^[1].

You can also join the National Press Association (it is free to apply). Membership does not change which definition or test a court applies to you ^[1].

If you need legal help, the Reporters Committee for Freedom of the Press runs a Legal Hotline for journalists and media lawyers ^[8].