Does a Blogger qualify as “journalist”?

The world is filled with nut cases, and Marco A. Hernandez, a U.S. District Court judge in Portland OR is one of them. Dr. Prague points out in a comment below, there are two sides to every story. In this case, the other side is written by David Carr and appeared in today’s New York Times. It is compelling and it forces me to reassess my acrimonious attack on Judge Hernandez. I may have inserted foot in mouth and then inserted it further. Read the rest of my early morning rant with a grain of salt…

This month, Judge Hernandez ruled that Bloggers who fail to show ties to an established newspaper, magazine or news bureau (presumably, it must be one that this nut case has heard of), are not in fact legitimate writers, editors or journalists. In his view, if a journalist’s podium is the internet of if they lack mainstream affiliation, or if they are self-published, then they are disqualified from the protection of the shield law, a basic statutory protection for anyone who publishes.

Will Judge Hernandez subpoena every Facebook user?

The title of this post asks “Does a Blogger qualify as journalist”. Of course, the answer is clear: One can argue over the truth of a report, quality of writing or credibility of a publisher (in the case of a Blog, the publisher may also be author & editor). But few argue over the credentials necessary to be a journalist. Anyone with a soap box qualifies, if they believe what they say and they reach out to listeners. It doesn’t matter how small is their podium, how unpopular their message, and it certainly doesn’t matter if they are self published. This is the 21st century, Judge! The Internet may not be The Great Equalizer,  but it certainly bestows a badge of editor, publisher and journalist on anyone who chooses to broadcast news and opinions.

Of course, other judges, lawyers and legal scholars around the country – including the attorney who drafted the shield law for Washington state – point out that Oregon’s definition of journalism “a bit outdated”. (a term of professional courtesy…The attorney wanted to say that Judge Hernandez is a nut case). Who appointed him arbiter of the affiliations that constitute a credible journalist? What about editorial pundits, Facebook housewives, and foreigners writing overseas? Will he go after them for failing to reveal their sources?

It’s a safe bet that Judge Hernandez’s decision will be overturned in the near future, if only for the uncountable number of Bloggers whom he suddenly turned into criminals. But just in case Crystal Cox, the Blogger-defendant does not pursue an appeal, or in the event some other yahoo strips my freedom from a bench closer to my jurisdiction, let’s be clear about this blog. Consider it the fine print for all of

This Blog represents the opinions of the editor & publisher or the guest writer whose contribution appears under the Wild Duck banner.

In the event that our writers use confidential sources, these sources will remain confidential until the source releases our writer from that obligation. In the case of guest writers, even our editor & publisher does not demand to know the identities of confidential sources. Our writers and various columnists are vetted and then invited based on their individual reputation. In turn, this reflects on the reputation and journalistic stature of AWildDuck Blog.

But let’s be clear: Everything you read on these pages is an opinion. All unsigned posts are the ruminations & opinions of Ellery Davies. In fact, there is but one statement of fact that is not an opinion. It is this: U.S. District Court judge Marco A. Hernandez is a nut case. I may need to perform surgery here — perhaps a complete retraction. Please don’t judge the judge until you read this new information from today’s New York Times.

So sayeth Ellery.

6 thoughts on “Does a Blogger qualify as “journalist”?

  1. I agree with Ellery on almost every aspect of this opinion. The judge’s decision is truly startling and seems to point to either extreme ignorance or an extremely narrow view of journalism (and one that is planted in a bygone century.) But I take issue with one tiny detail of Ellery’s characteristic rant. While I very much like the blunt, shoot from the hip, “call-it-like-I-see it” style, I would not be quick to call a U.S. District Court Judge a “nut case”…

    It’s not that I am scared to rant about a sitting judge, nor that I agree with the decision (something clearly stinks in Oregon!). But short of hearing the arguments and reading a full text of the decision, it is difficult to jump to the conclusion that Judge Hernandez is deranged. More likely, I suspect that the judge has limited exposure to new media, social networks, and especially to the distributed & self-empowered nature of our press in the 21st century.

    Judge Marcos A. Hernandez is not a nut case. He is an anachronism. As such, some of his peers should probably guide him to be more open to new media and perhaps the association between personal freedom and publishing and how it all relates to laws that were drafted before the internet made everyone a publisher.

  2. Hello Charles,

    As you have observed, the “shoot-from-the-hip” style is a signature trademark of this Blog. But I am not afraid to back down a bit once in a while. This is one of those times…

    In the context of my complaint and my passionate outrage, I used the term “nut case” to mean ‘anachronism’. Thank you for your excellent insight in helping guide me to this word!

    Even though I stated that the judge’s status as a ‘nut case’ is a FACT and not an OPINION, it is actually neither. It is a metaphor and it constituted an unfair, personal attack. Although I think that the legal decision was short sighted, ignorant of certain trends and most probably, invalid, I really shouldn’t have attacked the man. I should have restricted my attack to the ill-informed decision.

    But wait!! I have just received brand new information (see next comment, below). This could get very interesting. I may need to eat Crow Pie!

  3. Hello Gary. (Cc: David Carr)

    In response to my attack on US District Court judge Marcos Hernandez, you posted a link to David Carr’s piece in the New York Times. I appreciate the heads up. In fact, this changes everything!…

    Based on Mr. Carr’s article, I am now doing due diligence that I should have done before ranting about the decision (and before I called the judge a ‘nut case’). I have already alerted readers that we may be posting a retraction.

    I was wrong to Blog before checking the facts. I hope that my follow up gets as much visibility as the original article.

    I also need a more comprehensive understanding of the decision regarding the shield law. Was I mistaken about the very nature of Judge Hernandez’ decision? Sources suggest that the judge distinguished between the caliber of a journalist’s publisher or bureau affiliation and applied his own concept of “legitimate” news bureaus worthy of protection by the shield statute. If true, my concern about this judicial approach would not be annulled by a defendant who may be guilty of slander, defamation or interference with commerce. (Carr suggests that Ms. Cox may have levied reckless charges and manipulated search engines to aid in a personal vendetta). But even if she is guilty of a crime, those charges are unrelated to her shield privileges.

    Incidentally, While I believe that every journalist deserves the same rights and protections – even if they are only a web Blogger – In fact, it may be in Crystal Cox’s best interest to gain the support of her sources and reveal them in an effort to demonstrate innocence.

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