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Is a Law Blogger a Journalist?

When a legal ruling is mistakenly released into the public domain, does a lawyer, who is also a blogger, have an obligation to the court to remove the opinion -- or an obligation as a journalist to leave it up for readers? That's an interesting question posed by this scenario that unfolded over the past two days, involving an ALM blogger, How Appealing's Howard Bashman, and a 2nd Circuit decision in Higazy v. Templeton that Bashman posted on Thursday. As described here, in the Higazy case, the 2nd Circuit revised a lawsuit brought by an Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal.

A 2nd Circuit clerk asked Bashman to remove the decision from his site, but he declined. Bashman explained his reasoning for declining the request in this letter that he sent to the ABA Journal:

No one from the Second Circuit has attempted to explain to me the so-called security concerns -- which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion's factual recitation -- that led the Second Circuit to remove the opinion from its web site after the opinion had been posted there for all to see and access. Regardless, the Second Circuit official who contacted me admitted that the court was in no position to attempt to retrieve every electronic copy of the decision that the public had downloaded from that court's web site on October 18th, and thus it seemed clear to me that whatever security concerns there were had already been irreparably harmed by the Second Circuit's apparently premature public release of the decision.

When I posted the opinion at the "How Appealing" blog, hosted by American Lawyer Media, a respected publisher of legal news, there was no explanation publicly available anywhere or privately available to me for why the Second Circuit had withdrawn the opinion. In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the internet, referred to information contained in an appendix whose contents remained under seal.

If there is a lesson here, it is that courts should not make publicly available over their web sites decisions that they do not want to make available to the public, and if a court does so, there is no way to "undo" a decision's public issuance.

Bashman's description of himself as a journalist raised the interest of Matthew Felling (see this post at the CBS News Public Eye blog). Felling wondered whether bloggers can convert themselves into journalists or "members of the media" simply by stating that they are. So Felling contacted Bashman, who described that although he is a practicing attorney, he also considers himself part of the news media because ALM both hosts How Appealing and pays Bashman for his blog. In addition, Bashman described that he reports on court rulings at "How Appealing" as they issue -- he does not simply provide commentary -- and, in addition, his blog generates an average of 10,000 readers a day.

In Felling's view, Bashman "fits the bill" as a journalist. But Felling asks:

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does...But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

I agree with Felling that what Bashman does at How Appealing is journalism, and I also agree that Bashman absolutely made the right call in leaving the opinion up at his site. But what if the facts were different? What if the opinion that had been passed on to Bashman had been unlawfully procured, and he posted it knowingly? As a journalist, I could understand the rationale for accepting the opinion and keeping it online, but as a lawyer, would Bashman owe additional duties to the court? My thought here is whether there might be situations where a lawyer's duty as a lawyer on the one hand and a journalist on the other might diverge. Which ethical rules does a lawyer-blogger-journalist answer to in that situation?

Posted by Carolyn Elefant on October 19, 2007 at 02:41 PM | Permalink | Comments (7)

Comments

Funny that you should post about this. Bashman's blog seems to be having problems today, and the link he posted to the "withdrawn" decision is no longer working.

Did he get shut down?

Posted by: tekel | Oct 20, 2007 4:52:24 PM

Here is a summary of what happened with the decision, from my political blog:

http://www.psychsound.com/2007/10/a_tale_of_two_decisions_or_how.html

Posted by: steve | Oct 21, 2007 1:36:42 PM

Elefent asks: "Which ethical rules does a lawyer-blogger-journalist answer to in that situation?"

That's easy-- the lawyer ones. Unless s/he does not mind getting disbarred for blogging...

Posted by: | Oct 21, 2007 6:38:51 PM

More significantly, the "classified" material was clearly classified illegally.

It doesn't meet any of the standards for classification, and furthermore is evidence of criminal activity by the FBI, which I am told is explicitly not permitted to be classified.

There is no legal justification for taking the opinion down.

Posted by: Anon. | Oct 23, 2007 10:30:34 AM

This is a great issue, and one that I suspect will generate some serious academic commentary (and propably litigation) in the coming years.

In my opinion, anyone attempting to engage in a journalistic activity should be considered a journalist. The rule should be whether they make their writing available to the general public or are commenting on any matter of public concern.

The First Amendment protects everyone's free speech, even government employees when they are acting as citizens commenting on a matter of public concern (i.e., it protects government employees except where their communications are either private are are consubstantial with their work product). If Freedom of the Press were limited to some officially recognized class of journalist, it would merely provide an opportunity for the government erode yet another protection the bill of rights. Freedom of the press was one of the most important pieces of the bill of rights, and the press -- i.e. the court of public opinion -- is considered by many to be the unofficial fourth branch of government.

Undoubtedly, there is some dividing line between journalistic activity and non-journalistic activity, but there should be the strongest possible presumption that an individual who claims to be entitled to journalistic protection is so entitled.

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