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< | The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 |
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> | How Do You Protect That Which You Cannot Define
(revised)
By MahaAtal - 17 May 2009 |
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< | A journalism listserv to which I subscribe is abuzz over shield legislation up for debate in Congress, drafted after Judith Miller went to jail over anonymous sourcing in 2005. Everyone on this listserv takes for granted that journalists should have such a shield; the debate is over who qualifies as a journalist, and whether the shield bill will cover them. |
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> | In March, a journalism listserv to which I subscribe ignited over shield legislation up for debate in Congress, with both proponents and critics citing the First Amendment in their defense. |
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< | An Overview of Media, Present and Past
To begin with, let us lay out the categories we might want to include: |
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> | To be clear, the issue is not whether the First Amendment mandates a shield law or any other specific protections—it doesn’t. The issue is that the First Amendment bars any laws abridging the freedom of the press while the Fourteenth bars discrimination in access to constitutional rights. So long as the shield law does not itself impair anyone’s press freedom, it is fair game, but Congress must include all of “the press” under its shield. All the groups who seek protection are thus at pains to demonstrate that “the press” means them. |
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< | 1. paid reporters with professional news organizations |
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> | An Overview of Media, Who is Press?
These clamorers include: |
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< | 2. full-time bloggers, whether self-employed, working for think-tanks, or for news organizations |
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> | 1) paid reporters with professional news organizations;
2) full-time bloggers, amateur or professional;
3) citizen-activists who post informal opinions or eyewitness accounts. |
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< | 3. citizens with personal websites, where there is sporadic current affairs content: casual opining after an election or photos from a natural disaster |
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> | Under old interpretations, the first is “Press” and the last is “political Speech” but the middle category could be either. That is because the Press as distinct from Speech is a notion historically contingent on the means of producing journalism being distinct from the means of producing everyday communication: the web killed that distinction. |
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< | Under the 20th century constitutional regime, the first is “Press” and the last is “political Speech” but the middle category could be either. Some claim this bridging-the-gap quality of blogs should prompt us to eliminate the gap altogether. |
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> | To some, this means that professional journalism is just a subset of Speech, raising a new constitutional question—does the notion of a Press violate the First and Fourteenth Amendments by abridging the freedom of, or discriminating against, the makers of Speech who now use the same technology? |
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< | Historians have been at this question before, evaluating the advent of mass print. Were the first newspapers just technological updates of the town crier (all news is information and all speech is news)? Or were they a distinct and new form of information (the press is a public sphere)? |
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> | Speech-rights and Press-rights
Imagine a casual blogger arguing that because anyone can publish online, just like the professionals, anyone who wants one should have a press pass for a White House Briefing. This is a straw man, but citizen-activists are using it as a jumping-off point: Since the White House can’t give everyone a pass and since the people inside the briefing room are just Speech-makers, having a press conference for some Speech-makers and not others is discriminatory. But where is there a Speech-right to be in the briefing room? |
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< | I’ll contend, as Michael Schudson has done, that they were both: individuals take on a professional identity as journalists [separate from their private identity as makers of Speech] and profess—though they do not always fulfill—a professional code [distinct from what might be acceptable in Speech], of which disseminating information is one component. The essence of the Press is not just in the transmission of information, but also in the ritual of this social role—not only does visualizing the Press as professional public sphere make for better journalism; it creates a logical basis for Press freedom as a distinct First Amendment right. |
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> | Here the argument twists—instead of being two categories of Speech, the citizen-activists reclassify themselves and the professionals as two categories of Press, whose (statutory, not constitutional) rights conferred over the pre-Internet years include access to, and the right to publish, information not available to others and to be protected in libel suits for doing so. Some of these privileges—like the right to access government information—can be seamlessly legislated into Speech-rights, available to all of us, for a digital age when the press is just one kind of Speech. |
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< | The Problem with Techevangelists
Once upon a time, the logic of Free Press was that it takes an institutional concentration of opinion, Press, to check the institutional concentration of force, the State. Now that opinion-making is a diffuse power, we have to reconstitute the ritual and social role. One route is to abolish the Speech/Press divide and give everyone, in their personal capacity, the same rights and responsibilities accorded to the Press in its professional capacity. |
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> | But others, like the press passes, cannot: if professional journalists are just Speech-makers, does one eliminate press conferences since all the rest of us Speech-makers can’t fit in the room? Conversely, if citizen-bloggers are a subcategory of Press, then what defense would the White House have if sued for abridging press freedom by a citizen who wanted, but was not allowed, to sit beside the professional correspondents? |
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< | To give those rights to all private citizens all the time—to authorize every member of this course, for example, to refuse federal subpoenas that seek access to our personal information—would solve many privacy concerns. It would do so by eviscerating the notion of the State as a professional institution to which individual citizens cede certain rights. |
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> | The Problem with Techevangelism
While citizen-media activists want to level the playing field with professionals by labeling both groups Speech, they simultaneously demand access to statutory and customary privileges on the basis of the Free Press clause, which they’ve just advocated abolishing. |
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< | It’s an anarchist solution to the problem, but most of the people who produce and advocate for online journalism are the opposite of anarchists. They routinely claim that treating Speech and Press as equal is good for the political system. Yet most of the special freedoms accorded to the press—beyond the right to exist, as articulated in the First Amendment—are legislated freedoms accorded BY the State and in exchange for regulation BY the state that ordinary Speech is not subject to. |
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> | Without a designation like Press, there’s no obvious entity to which the privileges can attach. Affixing them to all Speech has undesirable consequences for citizens whose digital communications don’t aspire to compete with professional journalism at all: for one thing, Facebook posts can become fodder for libel suits. A shield law on all things digital would make it difficult to prosecute much of anything, since the time will come when all communication and commerce occurs online. |
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< | Few new media evangelists say every Joe Smith should be subject to libel lawsuits for falsehoods about elected leaders on his Facebook page, but they say we should extend things like source shield protections to his Facebook page all the same. Then they claim doing so will fulfill the Free Press clause, which they’ve just advocated abolishing. |
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> | Can Anything Be Done?
Statutory laws can bracket off certain individuals or types of content for protection in three ways: giving sources a right to privacy that journalists could invoke on their behalf, barring prosecutors from subpoenaing journalists, or allowing prosecutors to interrogate journalists to establish facts but not as a basis for prosecutions. |
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< | The problem, as Nicholas Lemann outlines it, is that “the rhetoric about Internet journalism…is plausible only because it conflates several distinct categories of material that are widely available online and didn’t used to be: online opinion, news from print sources that have now gone digital, news from online-only reporting outlets, and occasional current events content on people’s personal websites. But “most bloggers see themselves as engaging only in personal expression.” Even when they happen upon a story, they neither want the charge, nor claim the protections accrued for, searching out the news. |
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> | Each of these involves defining “journalist,” however, and the shield bill makes an attempt to do so: journalism is “regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.” |
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< | Meet the New First Amendment
It’s not the information but the ritual of going out to find it that differentiates Press from Speech. We should treat as Press people who set out to report and treat as Speech those who have something to say from their own experience and chance encounters. Both groups might be disseminating similar information, and indeed, the same individuals might do some of both, but the distinction is in process. |
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> | Yet in an all-press-is-Speech world, definitions like this are, if weakly enforced, easy to abuse, and if too aggressively enforced, bordering on discrimination. If a news blogger—a journalist under this definition—is subpoenaed to testify on a personal friend, it would be possible to claim that all their previous conversations were just journalistic interviews for a hypothetical blog post. Or, citizen-activists (who don’t qualify under this definition) could push to have courts rule on the law’s constitutionality by arguing that giving special rights to any sub-group of Speech-makers is an abridgment of the rights of the rest. |
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< | What does this mean for the law? |
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> | In law or medicine, where client confidentiality is commonplace, these problems don’t arise because exams make perfectly clear who is a lawyer or a doctor. Journalism is not a profession in this sense, but a craft, built on the practices of reporting. Given that those practices deliver information that both tech evangelists and old media dinosaurs acknowledges has civic and social value, preserving the structures that facilitate it—the ability to assure sources of their privacy, the ability to gain access to government officials, the protection from libel—matters. Yet now that the First Amendment and technological divides no longer delineate who gets those privileges, statutory protections runs into their own constitutional barriers. |
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< | A reporter at a newspaper does not get to thumb his nose at federal subpoenas related to his Facebook page—he is only Press in his professional life. Nor can that Facebook page be treated as “print” in a libel suit.
A reporter for an unscrupulous news organization is protected as Press, but because the organization announces intent to report, it can be sued for libel when his articles are false.
A blogger who announces himself as a reporter, and posts more than the occasional news item, would be protected from revealing sources, and able to justify probing modern-day Pentagon Papers, but he would also be considered a “printer” when it comes to libel.
A blogger who does not set out to report on the news, but happens to witness a tornado and reports it, gets no special cover if that report becomes the subject of court inquiry.
About that Shield Law
The shield law defines journalism as “regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.”
Some on my listserv protest the term “regular,” because it won’t include freelancers and bloggers. They are wrong. The Press means individuals—whatever other hats they wear in their personal lives, or in other jobs—who step into a Habermasean sphere and make an active commitment, when in that sphere, to adhere to the reporting process that is “regular” in that sphere. |
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> | Circumventing these requires journalists to agree on a system of professional accreditation akin to other fields, but this will limit access to the profession. The question that reporters and citizens face is whether we would prefer a press that is wide but vulnerable, or narrow but vigorous. Unless the press can be defined, it cannot be protected. |
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