The Freedom of the Press is Guaranteed to Those who Strive for One

By MahaAtal - 09 Mar 2009

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.

An Overview of Media, Present and Past

To begin with, let us lay out the categories we might want to include:

1. paid reporters with professional news organizations

2. full-time bloggers, whether self-employed, working for think-tanks, or for news organizations

3. citizens with personal websites, where there is sporadic current affairs content: casual opining after an election or photos from a natural disaster

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.

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)?

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.

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.

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.

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.

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.

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.

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.

What does this mean for the law?

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.

* Set ALLOWTOPICVIEW = TWikiAdminGroup, MahaAtal

---

I confess to having a tremendous amount of trouble with this paper. I see literally no Constitutional language, history, cases, or even common sense interpretation that supports the idea that the subjective intent behind a piece of writing (i.e. whether it is considered "reporting" or not by its author) determines the type of First Amendment protection it should be afforded. You suggest that: "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." I fail to see how the blogger's conception of himself as reporter or accidental witness should at all determine the level of Constitutional protection accorded to his speech. (Pragmatically speaking, wouldn't this subjective inquiry be easy to fool? If called upon by a court to reveal that which a "journalist" in your paradigm would not have to produce, couldn't this hypothetical reporter simply lie, saying that he indeed set out to report?)

The essay suggests that there would accordingly be a trade-off between lessened protection by certain laws and increased protection against libel suits for those not considered Press. But this confuses the issue: Though I am not a libel law expert by any stretch, my reading of the cases indicates that "ordinary people" (those plebian bloggers this essay refers to) are already subject to libel laws, though certainly the relative harm/reward of suing someone about libelous Facebook postings versus, say, the New York Times, make such suits less likely. (I do note, however, that it seems this state of affairs may be reversing itself. The death of the old media seems to be now inevitable, making the distinctions this essay proposes moot as well as quite probably wrong). Why, then, if we are already subject to the strictures of publication should we be denied its protections?

On a final note, though I suppose we are not obliged to address Eben's arguments in our essays, it seems to me that this essay can't avoid discussing the idea Eben proposed to us in class--- that the Press is not people, the Press is the machine. It is the machine that the First Amendment frees, and so accordingly, he who controls the machine (in the new age, all of us) is as free as any other man to speak. It seems faintly ridiculous, given this suggestion, to imagine that the writers of our Constitution had anything other in mind than the printing press when they laid down this clause; it is even more ridiculous, I think, to imagine that the Constitution can support the sort of subjective and self-serving distinctions that this essay proposes.

-- DanaDelger - 22 Mar 2009

---

Dana: You are correct that libel already may be applied to an individual who is not a part of the traditional "press". However, as this typically occurs in the context of an online publication, there already are additional federal safeguards: 47 USC §230. This law immunizes any user of an "interactive computer service" (broadly defined) from being considered a "publisher", for libel purposes, if this user did not create / develop the information. Barrett v. Rosenthal.

I think the lack of widespread lawsuits against facebook pages, then, is likely a result more of what Dana noted - harm / reward analysis. But they do happen: Dendrite v. Doe where a company sued to find out the identity of a person who posted negative comments about the company on a Yahoo! message board.

-- JonathanBonilla - 25 Mar 2009

---

I put this up here to extend a conversation I've been having on my own blog about what, exactly, we're trying to protect when we in media angst about saving the news industry from its impending apocalypse. What is journalism? My answer was somewhat half-baked, admittedly, and Dana hit on the main problems in her responses, but I want to push back in a few places.

If news executives don't get their act together, Dana and Eben are correct to allege there will be no such thing as "Press." But I have a little more faith in their ability, or at least some of them, to innovate out of the industry's current funk. More importantly, I see a social cost to having our news-of-record delivered as Speech rather than as Press. There is different information and different analysis that emerges when I go in search of information as a reporter than when I do so as a citizen-blogger (and for the record, I do both); there are questions I can ask, people I can access and most importantly, a mindset that I fall into in my professional mode that aren't there when I leave the newsroom. The best explanations of why Press is more than the sum of its participants are Nick Lemann's "Amateur Hour" and Jon Chait's "The Left's New Machine." I am trying to preserve and protect THAT set of practices, and to the extent that the old First Amendment is dead, I think it's what the new one should do. I am arguing for the intent and work of reporting as something that has to be demonstrated BEFORE you get the rights of Press--it is an earned, not an innate, privilege. So you can't just say, "Well, really, I was out looking for a natural disaster the day the tornado happened." Does that mean my model is inherently unequal because it privileges incumbents? Yes. Am I okay with that, even though I'm an aspirant still trying to break INTO the industry myself? Yes, because I think the institution of The Press matters more than my individual desire to become a journalist.

The fact that non-journalistic sites like FB have been subjected to libel lawsuits is part of the problem I'm addressing, so I'm not sure how referencing those undermines my argument that the law needs to be clarified to prevent that by making evident that these sites are Speech. The relative cost distinction between suing FB and suing the NYT will evaporate over time, so this issue will become more, not less, important.

Yes, Dana, when the Constitution was written, the Press was the physical printing press. But we've long abandoned the idea of literal interpretations. As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content. At the time, this was a technological distinction; now that it's not, I think we need to reinterpret the clause to maintain the distinction within the digital universe, NOT, as I think Dana is suggesting to welcome the distinction's demise. That way lies anarchism, and I'm certain the Constitution is not, and shouldn't be tweaked into, an anarchist text.