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The law of Bait Car journalism

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Opinion Zone,David Horrigan

David Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now… Bait Car? Yup. 

As the old Sesame Street song said, it would appear that one of these things just doesn’t belong here.  Well, that’s not what the producers of the television show, Bait Car, say.  They argue their show is real journalism, and—in an attempt to avoid producing evidence in a California court proceeding—they say their photographers are journalists.  In recognition of this creative legal argument, their case gets to be our Case of the Week.

What is a Journalist?

The proliferation of new media sources has created a novel question: Just what is a “journalist”?  Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates?  How about a requirement that you earn your living from journalism?  Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write?

This question has taken on real legal significance as the U.S. Congress and many states have tried to implement so-called “reporter’s shield” laws.  These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties.

Although there has been substantial progress, a federal shield law has not yet passed.  However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.

Some Republican lawmakers cited national security concerns with reporter’s shield legislation, and others had a more fundamental issue: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world?

Many hipsters sipping lattes at Starbucks like to bash so-called “Old Media.” As they iPad away their afternoons, bowing before the altar of “New Media,” they mock institutions such as The Wall Street Journal as the old media of their grandparents, and—bless their little black turtlenecks and Birkenstocks—they weren’t fooled by Rupert Murdoch’s purchase of Myspace.  Silly, Rupert, New Media is for hip kids.

But, the beautiful world of blogging Brown alumni opining on global warming and Maya Angelou’s contributions to literature while their conservative brethren blog on banks and hedge funds may be in for a shock to its modern sensibilities. There may be unwanted guests at this post-modern, online clambake, and it may be a sign of things to come.

Bait Car as New Media

The folks at truTV, that network of cop shows that used to be Court TV, have come up with a new show called, Bait Car.  In Bait Car, the producers work with local police to place an unlocked car with keys in the ignition out on the street.  It’s the bait for would-be car thieves.  Get it—bait, car?

Many unsuspecting citizens, including Joseph Bullard, took the bait.

Or did he?

In the case of People v. Bullard in the Superior Court of California, San Francisco County, Mr. Bullard argued that he was merely being a good citizen, moving the Bait Car out of its illegal parking spot.

He also argued selective prosecution.  Mr. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors arranged for the Bait Car to be placed outside Diva’s, a well-known, somewhat risqué San Francisco transgendered club.  Police countered that they just picked an area known for car theft.

To prove Mr. Bullard’s Good Samaritan claim, his legal counsel wanted to see the tapes of the filming from KKI Productions, the producers of the San Francisco episodes of Bait Car.  Not unlike Judge John Sirica sending an order to the Nixon White House, Judge Gerardo Sandoval ordered KKI to turn over the tapes.

Not so fast, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers were, in fact, journalists  and so under California’s reporter’s shield law, KKI refused.

Judge Sandoval wasn’t buying it.  He rejected KKI’s reporter’s shield argument, and demanded the tapes.

Funny thing.  You may have laughed at Mr. Bullard’s “I was only helping by moving the car” argument, but prosecutors dropped the charges against Mr. Bullard.

Future of Journalism?

Bait Car’s producers were working with prosecutors, turning over their tapes to the district attorney’s office, and that cooperation with cops was fatal to their legal argument, according to Judge Sandoval and legal journalism experts.

“You can’t have it both ways.  You can’t cooperate with one side and not the other,” said Lucy Dalglish, Executive Director of the Reporter’s Committee for Freedom of the Press.

“You can make a very strong argument that the cooperation with one side is a waiver of the privilege, Ms. Dalglish added.

People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law—although it does put Californians on notice that, if you’re in cahoots with the cops, you probably don’t get to be one, at least for reporter’s shield purposes.

The case also illustrates that the cozy little blogging world at Starbucks and beyond is also in the midst of a culture shift.  The latter day hipsters may have make room on the Starbucks sofa for Bait Car journalists, Dog the Bounty Hunter, Big Brian the Fortune Seller, and the zany, fun-loving staffs of Ma’s Roadhouse, Lizard Lick Towing, and Hardcore Pawn.

Yes, the Fourth Estate is becoming a very big tent in every respect imaginable...and in some not so imaginable.

David Horrigan is a Washington, DC, attorney, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal.  His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: dhorrigan@courtweek.com


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