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Senators: Bloggers may not be true journalists
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A generation ago, the answer usually was clear. Not anymore. Online scribes and video publishers are experimenting with novel forms of journalism, and even the most stodgy news organizations are embracing blogs.
That leaves politicians--hardly the most clued in about all things tech--in something of a quandary. They're being lobbied by professional news organizations and the American Bar Association to approve some kind of journalist's shield law while being urged by prosecutors to leave out bloggers.
The justification for a shield law is a perfectly reasonable one. After a federal appeals court enforced grand jury subpoenas against The New York Times and Time magazine, and the U.S. Supreme Court declined to take the case, news organizations decided to fix the law.
The Justice Department took a swipe at the leading shield proposal (H.R.3323/S.1419) during a Senate hearing last week, arguing that it would let criminals pose as bloggers.
"As drafted, the definition invites criminals to cloak their activities under the guise" of a journalist, warned Chuck Rosenberg, a U.S. Attorney in Texas. "The definition arguably could include any person who sets up an Internet 'blog.'" (It covers anyone who publishes an electronic "periodical.")
Sen. John Cornyn, a Texas Republican, seemed to be sympathetic to that argument. "The relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," Cornyn said.
Even the original sponsor of the Senate shield proposal, Richard Lugar, R-Ind., recently indicated that bloggers will "probably not" be deemed journalists.
Second-class citizens
That line of thinking could pose a real threat to people who use the Internet to do journalism. Not only will it make it harder to do the kind of serious reporting that requires confidential sources, but it's deeply symbolic: Independent online reporters are second-class citizens.
I'm not too worried about myself and my colleagues. CNET News.com has press credentials through the U.S. Congress' Daily Press Gallery, we've won awards from the National Press Club and the Society of Professional Journalists, and we're likely to be covered under the final version of a federal shield law.
But if the Bush administration has its way, one-person operations doing original reporting won't have equivalent protection from overzealous (or simply mean-spirited) federal prosecutors. That would unreasonably elevate corporate-sponsored journalism over independent muckraking.
That should worry anyone who believes in vigorous public debate. After all, even for news organizations with the money to hire lawyers, ambitious federal prosecutors can be menacing and disruptive.
I know this firsthand: in March 2001, the U.S. Justice Department served me with a subpoena to testify before a federal court in Tacoma, Wash. Media attorney Timothy Alger filed a motion in opposition, but the judge ignored it. (Just as the Justice Department ignored its own procedures, which require negotiating with journalists before firing off subpoenas.)
During my testimony, I invoked my First Amendment privileges three times when refusing to answer questions. I got off lucky compared with Judith Miller and at least 10 other journalists who have been threatened with similar sanctions recently: The judge didn't press the issue, and I never faced contempt charges.
If a similar prosecution had taken place in state court, prosecutors wouldn't have been able to be as aggressive. That's because 49 states and the District of Columbia recognize some sort of journalist's privilege.
Federal courts don't, and it's time to change that with a federal shield law. But while politicians are finalizing the wording, they should include individuals who are producing some of the most interesting journalism on the Internet today.
Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
See more CNET content tagged:
journalist, journalism, federal prosecutor, blogger, law
Journalists like to call themselves professionals, but are they really? Perhaps it's time those who want to be called "journalists" be required to demonstrate professional competence.
Maybe anyone who wants to be a "journalist" should be required to pass board exams which test his knowledge of current events, writing skills, and, hopefully, spelling and grammar. Other, true professionals (doctors, engineers, architects, etc) have to pass similar competency exams before they can hang out their shingles, after all.
Having to take a competency exam in NO WAY infringes on anyone's first amendment rights. It doesn't stop you from spouting of on any subject near and dear to your heart. But it does tell the rest of the world that hey, this guy is a PROFESSIONAL. He's not just a Tom, Dick or Sally with a keyboard and too much time on their hands.
This way we can draw a distinction on who should be entitled to protection under shield laws and who shouldn't.
Let the flame wars begin.
events," why don't we test Internet posters for their knowledge
of remote events.
We can start by asking if they know of the valient battles that
were waged over hundreds of years for the freedom to write and
to read without government hinderence. Those who didn't know
that one of the most important conflicts was over press
licensing, which government used to control the flow of
information, would fail the test.
I will concede that journalist licensing might have one positive
effect. Anyone who agreed to be licensed would be immediately
identified as a pathetic bootlicker whose writings were
worthless.
that should be spouting off. Lol. Couldn't resist
to provide information. Reporters should get no special
protection; they should have the same rights as any other serf.
The dirty truth is that many reporters would like being accorded
special status, including being licensed. That would separate the
privileged journalists who went to journalism school and work
for prestige publications (and web sites) from their less
conformist competitors.
Most reporters, especially on a local level, are little more than
mouthpieces for government officials. There is virtually no
questioning of authority. TV and radio stations, and daily
newspapers are as integral to the power structure as are other
prominent businesses. They are not just cozy with the elite, they
are the elite. Reporters delight in rubbing shoulders with
prominent people and chafe at writing negatively about them.
The interesting "news" and free thinking analysis usually comes
from outsiders. These are people who have often not been to
journalism school and don't aspire to be considered
professionals. Mainstream reporters loathe these guerillas. They
don't play the game; they don't succumb the mind-numbing
conformity that is the life of a regular journalist.
Becoming a reporter is easy and requires no special skills, which
is why schools of journalism are a joke. But the schools are the
ticket into mainstream journalism, and the place to cultivate
conformity.
Free people shouldn't be jailed for refusing to share their
thoughts, and shouldn't be limited to information that is spoon-
fed by officially sanctioned reporters.
Do I remain a "journalist" even if the "Times" fires me for making it up as I go along as in the case of Jason Blair? Am I, as a bona fide "journalist" protected under the shield law if I *lie* about people? How could the target of my lies prove I lied rather than having the "confidential" source I claimed I had? Answer - he can't.
The "Times" reporter who spent jail time knew the rules of the game *before* she refused to discuss the conversations for which her source had already waived privilege.
This proposed law is nonsense and should be rejected out of hand.
However, I suspect that Congress will now protect the reporters that have universally praised the campaign finance "reform" that gave journalists a monopoly on political speech during the last 60 days of Federal campaigns.
If you have money, you get to participate. If you don't, tough luck and better luck next life. ;-)
blogging is a nonsense, BS term anyway.
So this would include tabloids printing stories about the people found alive on the Titanic eighty years after it sank, but exclude the guy who was blogging from Kuwait City during the Iraqi occupation?
independent press protection under the constitution." All
Americans have an absolute right to freedom of expression.
These freedoms are not given by the government they are
"unalienable rights."
No group has to pretend to be anything or justify itself to the
government since every American is free to publish anything.
You call it anarchy, but the founders called it freedom, and it is
federal employees who represent the greatest threat to our
freedoms. They, and their state counterparts, are the ones who
would try to tell us what expression is acceptable, and which
groups are "legitimate news organizations."
Mr. Necessary's post is most useful. It shows the threat to
freedom against which we must always be vigilant. We couldn't
have had a posting that better reflects what the founders feared.
"This security of the freedom of the press requires that it should
be exempt not only from previous restraint by the Executive, as
in Great Britain, but from legislative restraint also; and this
exemption, to be effectual, must be an exemption not only from
the previous inspection of licensers, but from the subsequent
penalty of laws. -- James Madison, "Report on the Virginia
Resolutions"
http://press-pubs.uchicago.edu/founders/print_documents/
amendI_speechs24.html
"Licensers" are agents of the government who would decide
which of the press are "legitimate."
Three cheers for the anarchy of a free press!
being "muckrakers", we know for a fact that
there must be some very real disconnect
between such journalists' self-perceptions
and reality.
Let's face it - noble though the work maybe, we writers are not professionals in the sense that attornies or medical doctors are, nor do we need any particularly stringent licensures.
A press pass because a person covers the White House beat for whatever national publication is not at all a professional license. It's what it says it is - a license for admittance so a person can cover a story.
For a writer to perceive this as being anything more than the little that it is, is for that writer to be successfully connived by the precise same parties he's being to report on objectively and independantly.
It is the oldest game in the abuse-the-journalist's book: make them feel so self-important for being honored to be able to report on you that you make it difficult for them to report anything critical, edgy or independant about your encounter with them.
When I first started getting published in the 1960's, my colleagues referred to this process as being "co-opt'ed." It was a negative term about those in our profession who would think of themselves as anything more than that which we all are - writers, just like everyone else on earth, but lucky enough to get paid for it.
mark d.
three times when refusing to answer questions"
Which priveleges were those?
http://www.mccullagh.org/subpoena/transcript.112501.html
Our motion to quash has the arguments:
http://mccullagh.org/subpoena/motion.032901.html
three times when refusing to answer questions"
Which privileges were those?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
clear."
Was it really? Journalism has ranged from handbills to big presses
for the entire history of this country. And the treatment of both
has been spotty at best.
So because I keep a blog on my son's diaper contents (I don't, but I'd bet there's one out there) means I don't have to testify in court because i'm a "Journalist?"
Get real. I guess because I posted a comment here makes me a journalist too.
mark d.
- Freedom has no boundaries
- by dam7ri October 31, 2005 9:20 AM PST
- Imagine freedom of religion, only to Christians. Is that freedom?
- Like this Reply to this comment
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(30 Comments)When freedom of speech, the press, and to assemble peacably were put into the First Amendment, their purpose was to grant "everyone" the same rights, not those who the government approves of. These rights are to protect people with unpopular opinions, not the one with popular ones, because the unpopular opinions are the ones that need protection.
The reason that bloggers are coming under fire is because the government can't control them, nor should the government be allowed to.