J's Notes

Are Virginia Bloggers Journalists?


While that’s not the full question in play in Waldo Jaquith’s recent legal troublesit certainly is a large one as Thomas Garrett and his lawyers try to get information from Waldo about his commenters and their private information.  From the Motion To Compel:

[W]hile Virginia recognizes a qualified repotter’s privilege, see Brown v. Com., 214 Ya. 755,757 (1974), Mr. Jaquith has not introduced any evidence to prove that he is in fact a journalist. Since Mr. Jaquith asserts the privilege, he bears the burden of proving that the privilege applies to his communications. ,See Anderson v. Anderson,2g Ya. App. 673, 681-682 (1999) (“The party seeking to establish the existence of a privileged communication carries the burden of proof.”) Howevet, he has merely asserted “upon information and belief’ that the privilege applies (Mot. to Quash !f 4.), and has not offered any evidence in support of this assertion.

In any event, it seems unlikely that Mr. Jaquith would be able to carry his burden. Although it appears that no Virginia court has yet articulated a test for determining precisely who is a’Journalist” entitled to assert the qualified reporter’s privilege, cases from other jurisdictions have held that the law “does not grant status to any person with a manuscript, a web page or a frlm.” In re Madden, 751 F.3d 125, 129 (3d Cir. 1998). Nor does a person become a journalist merely by proclaiming that he or she is a journalist. Id. at 130. As one scholarly commentator has stated:

Any such self-proclaimed joumalist could unilaterally decide to place certain information offlimits simply by agreeing to promise confidentiality to a source. This would potentially exclude a huge amount of information from the legal system, and would result in substantial litigation costs as parties battled over the applicability of the virtually boundless privilege.

Randall D. Eliason, The Problems with the Reporter’s Privilege, 57 Am. U. L. Rev. 1341,1367 (2003). Nor is a person considered a journalist if he merely relies upon another party as his sole source of information, uncovers no story on his own, and does not independently investigate any of the information provided to him by that other party. Madden,151 F.3d at 130. lvfu. Jaquith therefore cannot benefit from the qualified reporter’s privilege inasmuch as the Article contains no information arising from his own investigative reporting but instead simply recites information provided or uncovered by others, including information provided by The Hook.

So even journalists can’t call themselves journalists if they cite sources that are not their own. Good to know.

So the question becomes how does one qualify as a “journalist”?  Must they be card carrying?  Is there a decoder ring? Do websites not qualify as a news medium and therefore anyone working specifically on a blog does not qualify as a journalist?

And, if Waldo was unoriginal in his posting of this information, then why chase after him or his commenters?  How is posting this story any different than a man telling the story in a bar, to which the crowd reacts in one fashion or another?  Are you going to subpoena drinking buddies next?

Beyond that, it’s a question of free speech and association, another point argued against when Waldo refuses to release IP information of commenters.  What Garrett’s lawyers argue is that some speech and association is more free than others:

In opposition to this request, Mr. Jaquith argues frst that these documents should not be disclosed because to do so would “threaten the exercise of fundamental rights” of the commenters, namely, their First Amendment right to anonymous speech on the internet, and that therefore the Subpoena “is subject to the closest scrutiny.” (Mot. to Quash fl 5.) However, the precedents cited by Mr. Jaquith in support of this position dealt with far more weighty constitutional matters than those at issue here. In bothNAACP v. Alabama,357 U.S.449 (1958) and Bates v. City of Little Rock,361 U.S. 516 (1960), governments in the former Confederacy had sought to compel units of the NAACP to disclose their membership lists, thus threatening members’ exercise of their First Amendment rights of free association, and perhaps even threatening their lives. The standard of “closest scrutiny” (sometimes referred to as “exacting scrutiny”) applied in those cases applies to speech only when it touches on prime matters of public political life, such as debate over the qualifications of candidates, discussion of governmental or political affairs, discussion of political campaigns, and advocacy of controversial points of view, in which case such speech is described as the “core” or “essence” of the First Amendment. See generally Mclntyre v. Ohio Elections Comm’n,514 U.S. 334, 346-347 (1995) (“When a law burdens core political speech, we apply ‘exacting scrutiny”‘).  By contrast, the comments posted on Mr. Jaquith’s article are almost uniformly tawdry, sophomoric, and spiteful, and touch upon no issues of public or political interest that constitute the “core” of the First Amendment, such as those at issue in NAACP and Bates. (See generally Exhibit 2.)

But clearly these comments are “controversial points of view” toward Garrett. So, protected.  And, as Waldo points out:

The enormous irony is here is that the comments that fit that description were posted by Garrett himself (or, at least, somebody who says that he’s Garrett and demonstrates an extraordinary amount of knowledge about the man), all of which were pretty nasty attacks on me, libelously accusing me of committing criminal acts. And in an effort to claim that I have contempt for the legal process (as a reader of my blog, you understand that precisely the opposite is true), Garrett’s attorney cites a comment left by James Young, in which he recites a joke about judges told to him by a judge. (James, as you may know, is an attorney who recently argued a case before the Supreme Court.)

Clearly what we’re seeing here is an attempt by an individual to squash any negative remarks about him and his character.  The argument seems less to be about the merrits of the comments and more about the rights of individuals to express them, at least where Waldo is involved.

The precident that Garrett and his attorneys are seeking to set here is a dangerous one and could very well harm the ability for bloggers who take what they do seriously continue to do so.  This could be a huge setback given the gains bloggers have made in being accepted and respected as members of the “press” throughout the state.  To segregate that playing field, to create a situation where some have more rights than others merely because you think you can bully an individual who has no corporate sponsor or means to pay for a high end legal defense, well, that says a lot more about you as an individual than any article on The Hook or repeated by any blogger.

Slantblog Talks Shockoe Baseball And Sock Puppetry


F.T. Rea takes the online anonymous support for Baseball In The Bottom to taskand it of course brings the same anonymous voices out of the woodwork to criticize him.  Naturally the anonymous FanGuy cites anonymous resistance to tyranny as a justification for his stance, but keeping baseball on Boulevard hardly necessitates a Richmond Tea Party.

That said, Terry is right to question the motives of the anonymous support for the stadium, especially when one blog was recently created last December and has made baseball in The Bottom the major theme of its posts.  Too often astroturf is being rolled out on the internet, attempting to create the look and feel of a grassroots movement toward something when it’s really one or two guys potentially paid by moneyed interests making it look like there is a movement.  Anyone can anonymously start a blog or four and then talk to themselves in the comments under other false names.  This happens in politics, business, heck, even restaurant reviews.

From childhood we are taught to question our sources – especially if one is working in a journalistic or academic capacity.  When those sources can not be completely vetted or properly questioned, then the merits of their arguments are thrown into doubt.

F.T. Rea and others are willing to put their names to their questions and stand by them, even opening themselves up to anonymous poo slinging.  That tells me more not just about their character but the weight of their words.

It really comes down to this: You do yourself and your cause more justice if you put your name on it.  If you don’t have the guts to put your name on something then how can anyone else take you or your points seriously?

If you can’t sign your name to your work then how seriously do you really take it and yourself?

PS – Baseball in Shockoe is a TERRIBLE idea.  Access to the area is horrendous and the development of the area is not one currently tailored to a baseball stadium.  Boulevard is THE home of baseball in Richmond, there’s plenty of room for growth and little currently existing structures or businesses that would suffer from a coninuation of the theme and efforts there.  It’s also right off an I-95 exit and you don’t have to worry about fighting through the I-64 interchange madness to get to it from the north (and it’s always easier to deal with the downtown interstate from the south anyway).

Facebook Users In Richmond


Inside Facebook has some interesting numbers on Facebook’s overall users and growth as of late.  What used to be limited to college kids has grown into something much more and it’s interesting to see how Facebook has evolved and will continue to evolve over the next year or so as it goes through these growing pains.

But seeing this made me think to take another peek at Facebook data for Richmond users.  I do this once in a while more for personal reference than anything but I figure some other people may be interested in the data as well.  All figures come from the Facebook Ad targeting system so they aren’t 100% accurate but do represent a good snapshot for RVA’s Facebook usage.

Total Facebook Users In Virginia: 1,794,480

Facebook Users In Richmond: 193,240

13-17 – 18,620
18-25 – 76,820
26-35 – 50,580
36+ – 43,320

Male – 77,690
Female – 108,520
Unidentified – 7,080

In High School – 18,780
In College – 31,960

  • VCU – 17,300
  • University of Richmond – 2,640
  • Virginia Union – 80
  • Virginia State – 360

College Grad – 22,800

Relationship Status
Single – 50,800
Relationship – 33,500
Engaged – 6,140
Married – 52,300