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Are bloggers journalists? Courts are catching up

DR logoThis week's Daily Record column is entitled "Are bloggers journalists? Courts are catching up"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Are bloggers journalists? Courts are catching up.

I wrote my first article about blogging in 2007. Back then, hardly anyone had heard of it, least of all my fellow lawyers.

At that point, I’d been blogging for over a year at my law blog, Sui Generis. I started that blog in late-2005 on the advice of my cousin, Rochester attorney David Rothenberg. I’d had lunch with David, seeking his advice on my return to the legal field after a 3-year hiatus. As the lunch concluded and we were heading out of the restaurant, he offhandedly mentioned “Oh, by the way, I heard about this thing called blogging on NPR this morning. You might want to check that out.”

That was some of the best advice I’ve ever received. I started Sui Generis a few weeks later and everything that I’ve accomplished to date has been, in some way, tangentially related to the body of work that I created on that blog.

Fast forward 6 years, and now everyone knows what a blog is, even if they don’t blog themselves. And, even lawyers started jumping on the blogging bandwagon in droves just a few years ago.

Blogging is now mainstream. So much so that for many people, blogs are one of their primary news sources. Think Huffington Post, for example. For that reason, bloggers have long tried to obtain status as journalists whether for the journalistic protections provided by the First Amendment or for the ability to have access to newsworthy events, such as trials.

It’s been an uphill battle and many efforts by bloggers to obtain the same rights as journalists have unsuccessful. However, the tide is slowly, but surely, changing, as evidenced by the Massachusetts Supreme Judicial Court’s decision to enact a new rule which will allow “citizen journalists” to photograph courtroom proceedings.

The new Rule 1:19 (www.universalhub.com/files/rule119.pdf) addresses electronic access to the courts and expands the definition of “news media” so that it now includes “organizations that regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic, and to individuals who regularly perform a similar function.”

The rules allows judges, at their discretion, to allow the “photographing or electronic recording or transmitting of courtroom proceedings to the public by the news media for news gathering purposes or for the dissemination of information to the public …”

The devices permitted to be operated include “still and video cameras, audio recording or transmitting devices, and portable computers or electronic devices with communication capabilities.”

The rule gives judges wide latitude to exercise discretion in allowing or disallowing the use of devices by media and wisely prohibits recording or transmission of, among other things, voir dire, bench and side-bar conferences and frontal or close-up views of jurors and prospective jurors. The rule also allows minors and sexual assault victims to be photographed only upon consent of the judge.

In other words, the rule allows judges to control the proceedings and protect the privacy of those involved to the extent needed to ensure a fair and impartial trial — one that is unaffected by the media coverage, whether by traditional media or “citizen journalists” such as bloggers.

The passage of this new rule gives me much needed hope. It is one more indication that the legal field does not consist of a bunch of clueless curmudgeons stuck in the 20th century. Instead, our profession is agile, forward-thinking and willing to change with the times and acknowledge the inescapable effects that technology is having upon our society as a whole, and, as a result, upon our justice system.

Massachusetts Supreme Judicial Court: thanks for making it easier for me to sleep at night. I salute you for a job well done.

Nicole Black is the Vice President of Business Development and Community Relations at MyCase, a cloud-based law practice management platform. She is a Rochester, NY-based attorney and a GigaOM Pro Analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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