Blogger rights and wrongs – From sea to shining sea

Surrogate's CourtLast week, on April 18th, I retweeted news of this court decision:

New Jersey blogger considered a journalist under state Shield Law
A New Jersey blogger qualifies for protection under the state’s shield law and does not have to reveal the names of government officials she accused of wrongdoing, a judge ruled.

Union County Superior Court Judge Karen Cassidy quashed county prosecutors’ subpoena served on blogger Tina Renna, who runs the website The County Watchers. Prosecutors sought the names of 16 local government officials Renna accused of misusing county generators after Hurricane Sandy in a December blog post. Cassidy ruled that Renna passed a three-part test that determines whether someone qualifies as a journalist and should receive protection under the shield law.

In the opinion, Cassidy considered the three factors: whether Renna had a connection to news media, whether her purpose was to gather or disseminate news, and whether she obtained her information through “professional newsgathering activities.”

“These original posts are arguably newsworthy and constitute ‘news’ under the Statute,” Cassidy wrote in her opinion released Friday. “In addition, her method of talking to sources, attending freeholder meetings, and using Open Public Records Act requests … is sufficiently similar to the methods used by traditional news media entities.”

The actual opinion is here.  I got a kick out of the fact that the blogger’s lawyer, a former journalist who has done a lot of media law, was the guy who first taught me how to defend a deposition when we were associates together (he much senior to me) at the same big New Jersey law firm.  (The same law firm I just defeated in a motion last month, in fact!)  We’ve both moved on since then, of course, and I was pleased to see the outcome — consistent with a position I’ve advocated for years.  Bloggers, obviously, are journalists, when they’re doing journalism, just as journalists, obviously, are something else when they merely act as propagandists or mouthpieces.  Journalism, as we said in the old Media Bloggers Association, is something you do, not something you are.

That was the question concerning whether one is a journalist or non-journalist, asked without reference to what one might be other than a journalist in that instance, which, the New Jersey court ruled, is not the inquiry — despite the insistence of another party, in that case a prosecutor, that the blogger is just “playing journalism” to avoid getting in trouble with the law:

Union County prosecutor Theodore Romankow . . .  has publicly questioned whether [blogger Tina] Renna made up the accusations and invoked the shield law so that she would not be caught.

“Personally, I believe she was caught in a lie and chose to waste time and money by hiding,” the prosecutor told the news website on Friday.

In court, Romankow said Renna cannot be considered a journalist because many of her posts are unprofessional and related to her personal involvement in local politics.

The New Jersey court wasn’t buying.  Guess what:  Journalism isn’t a “profession,” it is, yes, an activity.  And weighing personal involvement in a topic of journalistic interest, besides being actually pretty common among journalists, cannot possibly be a good policy.

Patterico Public Enemy No. 1

Attacking bloggers for what they write, however, can take more vicious form than service of a subpoena for information, not that that can’t be quite destructive.  And, sometimes, that prosecutor shoe can be on the other foot.  

That was the situation facing Los Angeles Assistant District Attorney Pat Frey — also known as Patterico, a widely-read blogger very much in the thick of a lot of stuff involving radicals, criminals and other “-als” that I try my best to avoid.  He was sued in California federal court last year by one Nadia Naffe, the subject of his intensive investigative blogging about her activities of on numerous grounds.  One was the conceit that because in his day job Pat was a county prosecutor, anything unkind he might say about her on his blog or in Twitter utterances was a violation of her civil rights under 28 U.S.C. Section 1983.  Pat was, she claimed, acting “under color of state law” by being a person who is a prosecutor, and was not entitled to write about her wrongs  — done way out of his jurisdiction — by virtue of that employment.

Uber-law-blogger and white-collar crack shot Ken White of Popehat and I took up the opportunity, on behalf not only of Patterico but  (unofficially) others similarly situated, to prevent this abuse of the judicial system from chewing up a private citizen on a government salary who could not possibly afford quality counsel to dispose of even an obviously meritless bit of political intimidation under the guise of a lawsuit.

Popehat HeaderWe filed a lot of papers over the last six months, but last Friday, April 19th, the result was, while unfortunately still  incomplete — some people, especially vindictive ones, don’t shake off that easily — a pretty good bit of news, as reported ably in posts by both Ken and Pat.  First, the relatively dispassionate Popehat post:

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick’s wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she’s in Massachusetts, Frey’s in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn’t described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can’t show $75,000 in damages, as is required for federal diversity jurisdiction, so there’s no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can’t succeed on her Section 1983 claim — her only federal claim — because she didn’t state facts showing that Patrick was a state actor when he was blogging as “Patterico”, and (2) he wouldn’t exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn’t need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can’t re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

Whatever on God’s green earth they think “it” is — I’m already admitted in the Ninth Circuit, and I don’t think much of it.  And I don’t think I’m breaching attorney-client privilege to tell you what I told Pat and Ken last night, that, well, now I am getting a bit sore about it.

Oh, and Patterico’s post, can’t forget that one:

For now, I will say only that I have the greatest lawyers in the world: Kenneth P. White (Ken fromPopehat), and Ron Coleman (from Likelihood of Confusion).

Comments are open.

Pat did go on to say a bit more, mostly less hyperbolic though no less accurate.  So between his analysis and Ken’s, I have nothing more to add at this point, at least about the Patterico case.

But I will say this:  I hope the Union County Prosecutor who fought against recognition of that relatively small-time — but, obviously, annoying enough to someone — New Jersey blogger as a journalist entitled to protection as such hears, one way or another, about the blogging journalist on the other side of the continent who, like him, also works as a prosecutor.  Maybe he will read about how some spin on Patterico’s personal and professional lives was used as a rationale by a litigant seeking to delegitimize his First Amendment rights and threaten his livelihood and his family.

And maybe the guy in Union County will take stock of what his colleague in Los Angeles County went through . . . and give all that a little thought.

I don’t think Ken White expects that to happen.  I don’t, really, either.

By Ron Coleman

I write this blog.