I blipped Senator Lindsey Graham's doubt about the First Amendment rights of bloggers yesterday. Ken Santema gives Graham's Constitutional nincompoopery much fuller treatment in this post on bloggers, journalists, and freedom of the press.
This discussion happens in the context of Congressional leaders considering a media shield law that would allow journalists to better protect the identity of their confidential sources. The inescapable question Graham and other lawmakers must grapple is what is journalist in the 21st century?
As Santema explains, if we're looking at the question from a Constitutional perspective, the definition of "journalist" doesn't matter. The First Amendment grants freedom of the press to everyone, not just a special professional class:
The second statement [of the First Amendment] goes “Congress shall make no law abridging the freedom of the press”. Here is where Senator Graham is actually making a mistake. He seems to believe that ‘freedom of the press’ is extra protections for journalists. Wrong! Freedom of the press is referring to the natural right of American Citizens to use technology as a means to distribute their free speech. At the time the Bill of Rights was created the printing press was the technology used to spread information. Since the First Amendment was originally ratified the Supreme Court has included other technologies in the category of ‘the press’. Books, movies, and video games have all been found to be part of ‘the press’. Since bloggers and journalists use the same technologies to exercise their free speech, there is no difference between the two groups from a ‘freedom of press’ perspective.
Having reviewed both relevant sections of the First Amendment one thing is quite clear: from a Constitutionally protected standpoint there is no difference between a blogger and a journalist. Senator Graham implying that journalists should get extra protections from a ‘media shield law’ would arbitrarily try to create different ‘classes’ of free speech based upon occupation. That is a very unconstitutional concept [Ken Santema, "Bloggers, Journalists, the Press, and the First Amendment," SoDakLiberty, 2013.06.06].
If we base a media shield law on the First Amendment, then that shield should cover everyone exercising the freedom of the press.
Whatever the feds do, we should remember that South Dakota Senate Bill 119 becomes law on July 1. That law, aimed at preventing school districts from signing exclusive media contracts for coverage of their sports events, includes this definition of journalism:
"Journalism," the gathering, preparing, collecting, photographing, recording, streaming, broadcasting, writing, editing, reporting, or publishing of news or information that concerns matters of public interest for dissemination to the public, including on the internet;
As I noted last February, that definition means South Dakota courts must view bloggers as journalists. But no matter how South Dakota, Senator Graham, or anyone else defines journalism, Santema is right on: freedom of the press is not a professional privilege of reporters; it is a basic right of American citizens to use technology to make their voices heard.
What is a journalist or a reporter? Going down that path is full of perils and would entail the government making decisions that by their very nature would erupt in controversy. I can picture conservatives complaining that MSNBC or The New York Times was given journalist standing, while liberals would be mad that Fox News or the Wall Street Journal was.
Deciding who qualifies is a decision no sane person would want to make.
Sanity never stands in the way of wingnuttery.
I think Mr Wiken just gave the perfect title for a blog post:
"Sanity never stands in the way of wingnuttery."
Apparently graham would think that our founding father pamphleters had no First Amendment right in their public communication. Let graham get a hold of Prism and he'll put a stop to it, by gawd.
Cory: prepare yourself for a shock. We are in complete agreement on this issue. If "freedom of the press" means anything, it means a freedom for anyone who publishes in any format. If a "shield law" is designed to protect this freedom, it has to cover bloggers, twits, etc.
If such a law protects only "legitimate journalists", then it gives legal benefits to a favored class of persons. We all ought to be wary of that type of conservatism that conserves the privileges of recognized and favored institutions.
Ken, do you think what your role and the role of your website qualified as journalism in the Daschle v. Thune contest.
What was the guy's name you conspired with that made his way into the White House Press Room? Was his name Jeff Gannon? Or was it James D. Guckert. What was the respected news source...Eagle something or other?
Legitimacy is earned and lost. Is there a reason that anyone associated with the sleazy blogging efforts for JT should have earned any right to call themselves a journalist?
Your call Ken. Was James Gannon (Google it at your own peril) a legitimate news source who served SD South Dakota well in the election?
Are astroturfed organizations real or just a tool to fool the fools?
Ken, do you see how the 1st Amendment was abused by yourself and others? Do you think that's OK if to hide behind the skirt of the 1st amendment to lie?
Actually, I'm not shocked, Ken. I count on Aberdonians named Ken for Constitutional sensibility. :-)
The idea that "the press" refers to a profession rather than a general citizen activity is an artifact of recent history, as ownership of newspapers became corporatized and concentrated, and as broadcast media evolved to require corporate-scale capital. The Internet and blogs specifically have put a printing press in everyone's hands. It will just take some time for common use of the word "press" to catch up with e-reality... and e-democracy.
Some Aberdonians have reservations about bestowing the title of press by which the fourth estate is known on the entire nation. As a number of scholars of journalism have pointed out the First Amendment does not contain the dangling modifier and confusing punctuation of the Second. It is quite precise in distinguishing the general bestowing of the right of free speech on the general population and that reserved for the press: Congress shall make no law ... abridging the freedom of speech, or of the press.
A federal court in Oregon, with what has become known as the Cox decision, suggests that a journalist may need to act on a set of professional standards to be recognized as member of the press.
In a worldwide survey of the status of the press in various countries, the Reuters Institute says of the U.S.: "There is no accepted brief definition of journalism in the United States. The issue stems partly from the rise of Internet communications, in which people without experience or qualifications present themselves as reporters or commentators (unvetted, unedited), and in which the audience self-limits the information it receives and grants credibility to the information that supports its point of view.”
It most significant that most of our more reputable institutions of higher education have stringent requirements for establishing the authenticity and credibility of any source cited from the Internet in academic research for professors and students. Those who concern themselves with the integrity of research, analysis, and communication have already decided that there is a set of professional standards which defines what constitutes the press.
That is not to say that in its attempts to compete with the popularity of the Internet that portions of the media have compromised away any credible claims to the press as holding to a higher standard of reliability and disciplined thought. No where has that kind of compromise left a community without a source of credible information and discussion than in Aberdeen.
It IS most significant...
Mr. Newquist,
I think the Crystal Cox decision is an excellent one to bring up in this conversation. Since it is fairly recent and deals with a media shield law I'm surprised journalists are not mentioning it. The decision can be read at:
http://ia700403.us.archive.org/9/items/gov.uscourts.ord.101036/gov.uscourts.ord.101036.123.0.pdf
There are a couple of relevant selections in the decision I would like to highlight. First:
"In my discussion, I did not state that a person who "blogs" could never be considered "media." I also did not state that to be considered "media," one had to possess all or most of the characteristics I recited. Rather, I confined my conclusion to the record defendant created in this case and noted that defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the "media.""
This decision did NOT attempt to determine the difference between a blogger and journalist. That is not what this case was about. And the defendant did not actually take the correct path for that to become part of this decision. Since the Cox decision was about defamation, the "freedom of the press" issue was not directly tackled.
Freedom of the press was acknowledged in the decision. This was done by referring to the SCOTUS Citizens United case:
"In Citizens United, the Court stated, as it had in previous cases, that "[w]e have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United, 130 S. Ct. at 905 (internal quotation marks omitted). It also acknowledged, as the instant case makes very clear, that "[w]ith the advent of the Internet and the decline of print and broadcast media,. . . ., the line between the media and others who wish to comment on political and social issues becomes far more blurred.""
So from a freedom of the press perspective the Cox decision (via Citizens United) actually backs up the fact that there are no 'special' classes of citizens for free speech. It is also worth noting that the SCOTUS chose to use the term "institutionalized press" instead of "The Press".
If legitimacy of journalists is the issue I think that is up to journalists as a group to create that legitimacy. That can be done through self-imposed standards and living up to those standards. Groups such as the Society of Professional Journalists have codes of practice to be followed.
I just fear if people are asking for the government to provide extra protections to journalists it will lead down a bad path. That could lead to an uneven application of "freedom of the press"; which in turn could lead towards government deciding "good press" from "bad press".
I just hope Congress has in-depth debates about the media shield law. My fear is there will be no real debate and it will come down to cliche arguments about the difference between journalists and bloggers.
Jana: yes. I think I am entitled to the freedom of the press when I publish my blog. That is the whole point of such freedoms. They protect even people you happen to disapprove of. Sorry.
I agree with David Newquist that there ought to be professional standards for journalism. This is largely up to the profession itself, as it is to other professions such as medicine.
However, such standards have no constitutional status. If they did, then the media elite could decide who gets the freedom to print or post. Freedom of speech extends to all speakers. Freedom of the press extends to all who publish in whatever medium.
Jana, Dr. Blanchard is right: the astro-turf blogging that Dick Wadhams orchestrated for Team Thune 2004 was indeed an exercise of freedom of the press. They got themselves presses and published their screeds. While not at all as truthful, noble, or literary as Thomas Paine or other Revolutionary pamphleteers, they were people using presses.
Both Kens are right about Cox: Judge Hernandez and the Oregon Legislature seem to have gotten into a discussion of who belongs to a professional class, not what constitutes the press. I suggest that journalism is a subset of the press. The computer and printer on your desk are a press. Using that computer and printer to make posters for your rummage sale isn't journalism, but it, too, is an exercise of freedom of the press (which Spearfish grossly infringes upon with its signage regulations).
Haven't you heard? It's a battle of words and most of them are lies.
Don't listen to what we say, watch what we do.
DWC is winning the word war and will trounce Dems in 2014.
DWC is also an exercise of the press—an ugly, deceitful, spiteful exercise, but press nonetheless. (I think that's the relevant point Larry was trying to make.)
So, losing proudly > winning ugly? The South Dakota Democratic Party in a thirty year old nutshell. Get angry or go home, Cory.
Journalism is not medicine. The idea of journalistic standards has some merit, but the idea of making these standards some kind of legal license requirement destroys freedom of press.
It does seem to me that requiring ownership of "press" statements makes sense. Honest description of ownership and purpose also makes sense. That is why I don't take anonymous comments or those attached to personna names particularly seriously.
Unfortunately, we mostly don't really know who actually owns the institutionalized press. Ownership usually alters content, but without an obvious trail to purpose or intentions.
Mr. Santema correctly notes that the Cox decision was about a libel case. I was summarizing Judge Hernandez’s suggestion that to be considered a member of the press, a person who publishes must act on a set of professional standards. I, also, stress that the Reuters’ summation regarding how the press is defined in the U. S. states that there is no “accepted brief” definition. However, most colleges and universities teach courses in professional journalism, have departments and programs devoted to it, and the field of journalism itself engages in discussing and defining its professional responsibilities in all manner of published material. That huge body of material presents professional standards about which professional journalists have knowledge and training and upon which they act. The definition describes a disciplinary process that does not fit on a bumper sticker. Or easily on a blog. And there are few blogs, whether sponsored by larger media or emanating from a lone laptop, which acknowledge the definition of press that developed over the centuries.
Until recent decades, the legal distinction between the overarching freedom of speech and freedom of the press was largely evident in the matter of libel. Judge Hernandez provides a review of how that distinction became obscured. He mentions The New York Times v. Sullivan case in 1964 which changed the concept of “privilege” in cases of libel that was conferred on the press over those who were exercising the more general right of free speech. The privilege was that in making factual, but defamatory statements about non-public figures in matters in which there was public interest, the press was given the privilege of assuming that it was operating to inform the public and that careful, meticulous procedures were followed to insure the accuracy of what was reported. If a libel suit was initiated and what was published turned out to be false, the plaintiff had to prove fault on the part of the press in order to prevail. Fault consisted of the presence of malice or negligence. If fault were proven, the monetary award to the plaintiff could be huge. So, the press had standards and procedures in place to prevent any the occurrence of fault. Citizens who slandered or libeled another private citizen could be sued solely on the basis of whether any defamatory statement they made about another was true or not.
However, that privilege imposed a prodigious responsibility on the press. The press was liable for any material it published. If a letter to the editor contained libelous material, the newspaper, not the writer, would be held liable. One of the onerous journalistic tasks in that time was fact-checking letters to the editor and editing any expressions of opinion that implied a factual basis.
Then came the Decency in Communications Act in 1986. It has provisions that relieve internet service providers from responsibility for any libelous materials published by those who use their services. When the legacy media produced online editions, it slipped in under the relaxed standards of who is responsible for libel under the DCA. Another development that weakened the standards of libel for the press and the general public came about through the case law involved in the above mentioned case and law. Formerly, any statement proved libelous was assumed to be damaging, and successful plaintiffs were awarded damages. Now, plaintiffs have to prove specific effects that libel has had on their incomes. This aspect is discussed in the Cox decision. Damages of social relationships and general reputation are not given much attention if specific dollar amounts are not involved. People can be accused of things they have not done, as long as the accusations do not materially affect their finances. At one time, false accusations (the bearing of false witness) were considered one of the more serious violations of essential morality.
The idea that anyone with a PC is a member of the press is like saying that anyone who possesses a scalpel is like a surgeon. We don’t have any brief, slogan-based definition of the press, but we do have a long and coherent definition that has been in process since Thomas Paine and Ben Franklin. There are well-established standards that distinguish between someone who practices journalism and someone who merely types words and publishes them on the Internet. And the libel that occurs on blogs and comment sections is a daily fact of life.
The question is not whether people share the freedom of expression equal to that of the press. The question is if people should be held accountable for the damage they do. And among many, being held responsible for what they say is regarded as an infringement of their freedom. And the people who are damaged have no rights of recourse.
Typo alert: the Communications Decency Act was passed in 1996.
Thank-you Mr Newquist for the thoughtful explanation. You helped me better understand a portion of the Cox decision that I may have been misinterpreting. You have given us much to think about.
Even after reading your words I still feel there should be no constitutional/legal differences between journalists and bloggers. However as you point out there is now the problem of people not being held accountable for the damages they cause. This lack of responsibility and accountability is indeed an issue. I'm not sure what the answer is, but I am quite sure than more laws will not fix this situation.
David: anyone who possessed a scalpel and employed as a surgeon does would be doing surgery, whether he is a professional surgeon or not. Anyone in Benjamin Franklin's time who set up a printing press and turned out leaflets would have enjoyed whatever freedom of the press allowed by law. If the New York Times behaves unprofessionally (as frequently it does) that doesn't mean that it somehow ceases to be part of the press. It just means that they were unprofessional. The same is true for amateur journalists, which is clearly what many bloggers are.
While I think it a bad idea to allow amateur surgeons to practice I think it is a very good idea to allow amateur journalists to publish in whatever format is available. Perhaps you are correct that there is insufficient protection for people who have been libeled. That does not indicate the main point here. If to "press" is to publish (and what else can it mean in this age) anyone who publishes enjoys full freedom of the press. The grandma in her nightgown taping away against the Democrats or the Republicans enjoys the same protections as the Washington Post.
Anyone who practiced surgery without any credentials or certification of competence would also be called a fraud. No one has suggested that the freedom of speech, which includes the right to say what ever one wishes on the Internet, should be infringed. The issue is whether bloggers and the people who facilitate them should be held to the same responsibilities as the press.
This discussion was initiated over the question of shield laws that would protect journalists who refuse to reveal anonymous sources, and the question was raised as to whether bloggers would also be covered. The habit of quoting sources and keeping them anonymous is a recent development that is doing damage to the credibility of the legacy press. It is a ploy that is over-used and misused. While an editor, I also a member and the co-ordinator of an investigative reporting team. The matter of protecting anonymous sources had quite a different context than what has evolved recently.
We did not quote confidential tipsters. Rather we used them to point us to sources of information that could verify and be used as documentation for what we were investigating and reporting. This is the function that Deep Throat served in Woodward's and Bernstein's Watergate expose.
We intensified the verification rule. Where we did not find documents that revealed the facts about what we were looking into, we required three verifying sources, and if we did not find them, we did not publish any reports. That was the general rule. And the supervising editors enforced that rule stringently. And when reporters had confidential tips, they would not reveal the identities in their stories or in court, but editors insisted that they know the identity and insure that the tip was real and accurate.
The issue is if bloggers want to say they are practicing journalism, why should they not be held to the same level of responsibility?
I am not in favor of shield laws. They would shield journalistic shysterism more than any responsible journalists, whose first concern is documenting any information they receive in confidential circumstances.
I tend to agree with Mr. Santema that more laws would not solve the problem of providing protection and recourse from libel. We have a statement in our state constitution, as many states do, that it is a fundamental right of citizens to be free from defamation. Current law and case law, however, contradicts that right, and the places the right of people to defame over the right to be free from it.
People have the right to free expression. Why should they not be held responsible for any malicious and negligent damage they do? As would be the case of a bumbling idiot with a scalpel?
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