While that’s not the full question in play in Waldo Jaquith’s recent legal troubles it 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 precedent 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.