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Expanding Journalistic Protections to Informal News Gatherers

On the Media · · Listen to Original Episode →
Original Title: How a Gossip Blogger (almost) Became the Poster Child for First Amendment Rights

TL;DR

  • Expanding legal protections to informal news gatherers, including bloggers like Perez Hilton, is crucial for defending press freedom amidst evolving media landscapes and preventing institutional barriers that favor traditional outlets.
  • The legal battle over Perez Hilton's subpoena highlights how existing shield laws vary significantly by state, creating an uneven playing field for journalists based on their location and affiliation.
  • Perez Hilton's case demonstrates that the definition of "journalist" is being challenged, necessitating a broader legal interpretation to encompass individuals engaged in news gathering outside mainstream media structures.
  • Relying on AI tools like ChatGPT for legal briefs, as Perez Hilton did, can lead to significant errors such as hallucinated case law, underscoring the need for human oversight in critical legal processes.
  • The ACLU's pro bono representation of Perez Hilton signals a strategic effort to broaden the definition of who qualifies for journalistic protections, thereby safeguarding the rights of a wider range of news creators.
  • The historical Branzburg v. Hayes Supreme Court decision established a balancing test for journalist testimony, which, though lost by the reporters, influenced the development of state shield laws and Justice Department guidelines.

Deep Dive

The core argument is that Perez Hilton, a controversial gossip blogger, represents a critical edge case in defining who qualifies as a journalist and therefore deserves legal protections, particularly in an era of rapidly evolving media landscapes. This case highlights the tension between traditional journalistic gatekeepers and informal news gatherers, with significant implications for the future of press freedom and the definition of journalism itself.

The legal battle began when Blake Lively's team subpoenaed Hilton for his notes related to allegations of sexual harassment on a film set. Lively's team claimed Hilton's reporting was part of a smear campaign against her, aiming to uncover evidence of coordination. While Lively's team did not sue Hilton directly, the subpoena sought to compel the production of his materials and potentially his testimony. Hilton, representing himself and using AI for legal briefs, faced significant legal costs, as his libel insurance was not applicable to a subpoena defense. This situation underscored the precarious legal position of individuals operating outside traditional media institutions.

Historically, journalistic protections stem from cases like Branzburg v. Hayes (1972), which established a qualified privilege for journalists, requiring that information be relevant, material, and unobtainable elsewhere. However, these protections are inconsistent, varying by state shield laws and definitions of who constitutes a journalist. Hilton's case became focal as Nevada, where he resides, has robust shield laws, while New York, where the lawsuit was filed, has weaker ones. The Nevada judge ruled New York law applied, potentially forcing Hilton to comply.

The American Civil Liberties Union (ACLU) intervened, not primarily to defend Hilton's individual actions, but to broaden the definition of who is considered a journalist. The ACLU's concern is that governments increasingly deny legal protections to those engaged in news gathering who lack traditional institutional affiliation. By defending Hilton, the ACLU sought to establish that individuals conducting news gathering informally, like bloggers and social media content creators, should also be entitled to press freedom rights. This stance recognizes that significant journalism is now happening outside mainstream media, exemplified by cases like Mario Guevara, a live streamer covering immigration enforcement, and Darnella Frazier, who documented George Floyd's murder.

The argument for expanding protections to a broader group of "journalists" acknowledges that this may include individuals whose work has less social value or is even harmful. However, proponents argue that drawing legal distinctions based on content quality or ethical standards is fraught with peril and could lead to unintended consequences, potentially undermining the protections for all. The legal framework for journalists was largely established by established news organizations to protect their interests, and the current climate demands a more functional definition of journalism that extends protections to those engaged in the news gathering process, regardless of their affiliation. The trade-off for broader protections, even for less ethically rigorous practitioners, is considered by some to be a necessary cost to ensure the rights of those doing vital, informal news gathering are preserved. Ultimately, the case demonstrates that the evolving media landscape necessitates a reevaluation of who is protected under the umbrella of journalism to safeguard press freedom for all.

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Key Quotes

"Perez Hilton is a blogger, social media personality, and a celebrity himself who for 20 years has chronicled celebrity culture in a variety of different media. He's done a lot of provocative things, he's been a bully. He really went after Britney Spears when she was having mental health issues and he seemed to really taunt and show a real lack of compassion."

Joel Simon explains that Perez Hilton's career has been marked by provocative and often bullying behavior, including targeting celebrities during vulnerable periods. This highlights a controversial aspect of Hilton's online persona, which Simon notes has garnered significant attention and engagement.

"Perez Hilton has now become, according to you, an interesting and important edge case in the legal protections afforded to journalists. Five months ago, he received a subpoena from the legal team representing actor Blake Lively."

Simon introduces Perez Hilton as a crucial, albeit unconventional, figure in a legal battle concerning press freedom. The subpoena from Blake Lively's team signifies a direct challenge to the legal protections typically afforded to those involved in news gathering.

"He was getting alerts every time there was a legal filing, and he was going through those legal filings, and it's sort of a niche audience that is following like every single development in this case, but he was often the first to get that information out there. He relied on the legal filings and then, you know, a kind of network of sources that he had who he didn't disclose to me who were connected to the case, but definitely there was new information absolutely."

Simon clarifies that despite Hilton's controversial methods, his work involved journalistic practices such as monitoring legal filings and utilizing undisclosed sources to break news. This demonstrates that even a gossip blogger can engage in news gathering that produces original information for a specific audience.

"The ACLUs concern was that the government is basically asserting in all sorts of different contexts that people who are engaged in news gathering are not journalists and they're not entitled to any sort of legal protections, and that if they could make the case with Hilton, broaden the definition of who's a journalist and who is entitled to these protections and these rights, then they could actually defend the rights of all sorts of people who are engaged in news gathering in more informal ways and not affiliated with the traditional or mainstream media."

Simon explains that the ACLU's decision to represent Perez Hilton stemmed from a broader concern about the government's potential to exclude informal news gatherers from legal protections. The ACLU saw Hilton's case as an opportunity to expand the definition of "journalist" to include those outside traditional media structures.

"You have to remember that the legal framework that defends the rights of journalists was really created half a century ago by general counsels working for major news organizations, and they represented those organizations. Their fundamental role was to protect the interests of the organizations that employed them, and I think the legal environment that we have today reflects that reality."

Simon points out that current legal protections for journalists were established by and for traditional news organizations, reflecting their specific interests. He suggests that this historical context may not adequately address the evolving landscape of news gathering in the digital age.

"We have Don Lemon doing kind of informal videos, we have Pulitzer Prize-winning journalists who are doing Substack. So the whole way in which journalism is conducted is changing, and we need to evolve to address this reality. And if that means that a certain number of journalists who maybe don't practice the profession with the highest ethical standards also receive some level of legal protection, so be it. That is a trade-off I am willing to make."

Simon argues for adapting legal frameworks to the changing nature of journalism, which now includes informal content creators and traditional journalists utilizing new platforms. He expresses a willingness to accept that some individuals with lower ethical standards might gain legal protections as a consequence of this broader inclusion.

Resources

External Resources

Books

  • "The OG News Influencer" by Joel Simon - Mentioned as the title of a piece about Perez Hilton.

Articles & Papers

  • "The OG News Influencer" (Columbia Journalism Review) - Discussed as the source of the author's initial learning about Perez Hilton's legal situation.

People

  • Perez Hilton - Gossip blogger and social media personality whose legal battle is the subject of the discussion.
  • Joel Simon - Founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism, author of the article about Perez Hilton.
  • Blake Lively - Actor involved in a legal claim concerning alleged sexual harassment and a smear campaign.
  • Justin Baldoni - Individual being pursued legally by Blake Lively's team.
  • Earl Caldwell - Journalist for The New York Times involved in a 1972 Supreme Court case regarding journalist subpoenas.
  • Branzburg - Reporter from Ohio involved in a 1972 Supreme Court case regarding journalist subpoenas.
  • Chris Patterson - Legal director at the ACLU of Nevada who decided to represent Perez Hilton.
  • Mario Guevara - Live streamer from El Salvador who documented US immigration enforcement and faced deportation proceedings.
  • Darnella Frazier - Eyewitness who documented the murder of George Floyd.
  • Don Lemon - Mentioned as an example of someone doing informal videos.
  • Ira Flatow - Host of Science Friday.

Organizations & Institutions

  • Columbia Journalism Review - Publication where an article about Perez Hilton was featured.
  • Journalism Protection Initiative - Initiative at the Craig Newmark Graduate School of Journalism.
  • Craig Newmark Graduate School of Journalism - Institution where the Journalism Protection Initiative is located.
  • ACLU (American Civil Liberties Union) - Organization that provided pro bono representation to Perez Hilton.
  • ACLU of Nevada - Local chapter of the ACLU involved in Perez Hilton's case.
  • New York Times - News organization that contested a subpoena in the Branzburg v. Hayes case.
  • Justice Department - Mentioned in relation to guidelines for subpoenaing journalists.
  • WNYC - Public radio station, mentioned in relation to sponsorship information.

Websites & Online Resources

  • Perez Hilton (Blog/Social Media) - Chronicled celebrity culture for 20 years.
  • ChatGPT - AI tool used by Perez Hilton to draft legal briefs.
  • Substack - Platform mentioned as a place where Pulitzer Prize-winning journalists are doing work.
  • TikTok - Social media platform where the podcast is expanding its reach.
  • Instagram - Social media platform where the podcast is expanding its reach.

Other Resources

  • First Amendment Rights - Legal concept at the edge of journalism discussed in relation to Perez Hilton's case.
  • Press Freedom - Issue discussed in relation to legal implications for journalists.
  • Shield Laws - State laws that offer legal protections to journalists.
  • Libel Insurance - Type of insurance held by Perez Hilton.
  • Pro Se Representation - Legal term for representing oneself in court without a lawyer.
  • Legal Hallucinations - Term used to describe false citations generated by AI in legal briefs.
  • News Gathering - Activity for which legal protections are discussed.
  • Absolute Protection - Type of shield law protection where journalists never need to testify.
  • Qualified Protection - Type of shield law protection where journalists may have to testify under certain conditions.
  • Journalist Definition - The evolving definition of who qualifies as a journalist in the eyes of the law.
  • Ethical Frameworks - Standards for conducting journalism within the profession.
  • Social Value - Criterion for evaluating the importance of work done by news content creators.
  • Free Speech - Concept related to the expression of ideas, including those with less social value.
  • Press Badge - Identification sometimes required for journalists to access certain scenes.
  • Functional Understanding of Journalism - The idea of defining journalism by its activity rather than by affiliation.
  • Legal Framework for Journalists - The established legal protections for journalists.
  • Political News - Type of news coverage mentioned in relation to audience turning to Science Friday.
  • Science, Technology, and Medicine News - Subject matter covered by Science Friday.
  • Cancer, Climate Change, Genetic Engineering, Childhood Diseases - Examples of important topics covered by Science Friday.

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