Arianna Huffington vehemently defended her right not to pay bloggers from day one, but it may now up to a judge to decide. According to Forbes, a group of bloggers will file a class action lawsuit today against Huffington, The Huffington Post and AOL over their right to be paid for volunteer work. We know. If the bloggers "volunteered," they don't need to be paid, right?
Maybe not, as this case is not without precedent. In 1999, a group of volunteer chatroom moderators at--get this--AOL sued the company over an alleged violation in the Fair Labor Standards Act. AOL settled out of court for $15 million after delaying the case for a decade. The organizer behind this case, journalist and former National Writers Union president Jonathan Tasini (pictured above, at right), also sued The New York Times over freelancer's copyrights in the paper's electronic database. The case made it to the Supreme Court which decided in favor of the writers who won $18 million in compensation.
This is only the latest episode in a long saga of The Huffington Post's unpaid bloggers versus The Huffington Post's paid staff. (Full disclosure: I worked as an editor at The Huffington Post from 2009 to the end of 2010.) In February, Huffington Post bloggers sparked a firestorm of trash-talking after not being offered a cent of the site’s recent $315 million purchase by AOL. Days after the announcement, many of the site’s bloggers organized a protest against their exclusion and vowed never to blog on the site again.
Pundits and journalist unions alike agreed. Citizen media guru Dan Gillmor called Arianna Huffington’s announcement “dismissive” of the free bloggers and her use of their content “exploitative.” The Newspaper Guild, a union whose mission is to ensure fair compensation for newspaper writers, sent a letter to their members instructing them to stop blogging until the Huffington Post agreed to pay for the content. Last week, a large group of current and former Huffington Post bloggers even launched their own site, independent of the Huffington Post, where the group could stand the chance of earning money from their posts through advertising revenue. The names of those behind the group, the Huffington Post Bloggers Union, remain anonymous, though they do claim affiliation with the New York Chapter of the National Writers' Union (UAW 1981), likely the same union helping to organize the class action lawsuit.
It seems unlikely that the Huffington Post would bend to pressure, though. When star citizen journalist Mayhill Fowler resigned from the site over six months ago for lack of pay and editorial support, the Huffington Post's response was: "How can you resign from a job you never had?" (Fowler’s the one who produced arguably the Huffington Post's biggest story of its history: the audio of Barack Obama describing Pennsylvania voters as "bitter" people who "cling to guns and religion.") Meanwhile, Huffington's message in the face of the protests is consistent and clear: "We pay for reporting, not opinions." And the site seems as serious as ever about keeping journalists who want to be paid out of the pool. The company recently fired an editor who invited the soon-to-be-laid-off freelancers at MovieFone, now a part of the Huffington Post Media Group, to blog for free.
Lauren Kirchner of the Columbia Journalism Review hypothesized back in February that the bloggers' case would not stand up in court due to the role of "regimentation" in the definition of employment. According to law professors interviewed by Kirchner, the case would depend on the writers' duties, whether they're assigned articles and to what extent they maintain a continuing relationship with HuffPost. Wrote Kirchner:
The thousands of unpaid bloggers in question, of course, have signed no agreement with the site, and are under no obligation to submit their stories with any regularity. They do not receive assignments. If they have an idea for a post but then decide not to write it, they are not penalized by the site’s editors in any way. This lack of regimentation in that editor/writer relationship would weaken the bloggers’ (hypothetical) case against The Huffington Post.
If the 1999 AOL case could provide any insight, this case may never reach court. As the Huffington Post ballooned in resources following the AOL purchase, legal resources may be a little imbalanced between the unpaid writers and the new AOL incarnation, the Huffington Post Media Group.