We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age

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9780743299268: We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age

There is a battle brewing in American life in which bloggers and other citizen journalists will demand the same rights and privileges traditionally enjoyed by professional journalists.

What is a journalist? What differentiates journalists from other people who seek to disseminate ideas and information to the public? Does whether someone is considered a journalist depend on where his or her words are published? On whether he gets paid? On whether she offers only "objective" facts or also supplies her own analysis and ideas?

It was not long ago that the lines between journalists and the rest of us seemed relatively clear. Those who worked for "news" organizations were journalists; everyone else was not. In the view of most, you knew the press when you saw it.

Those days are gone. Thanks to the internet and the growing "blogosphere," the lines distinguishing journalists from other people who disseminate information, ideas and opinions to a wide audience have been blurred, perhaps beyond recognition. Some of that blurring has resulted from forces outside the media, some from the transformation of the media itself. Whatever the causes, it is harder than ever to tell who is a journalist.

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About the Author:

Scott Gant is an attorney in Washington, D.C., where his practice includes constitutional and media law. He is former counsel for The New Republic and a graduate of Harvard Law School.

Excerpt. Reprinted by permission. All rights reserved.:

Chapter One: We're All Journalists Now

The pantheon of modern American journalists is occupied by familiar names, like Bob Woodward and Carl Bernstein, Walter Cronkite, Mike Wallace, Rush Limbaugh, Bill O'Reilly. Wait a minute...Rush Limbaugh? Bill O'Reilly? Yes, according to a poll conducted in 2005, 40 percent of respondents identified Bill O'Reilly as a journalist, while only 30 percent said the same of Bob Woodward -- slightly more than Rush Limbaugh's 27 percent.

Perhaps these results should not be surprising. After all, what is a journalist? What differentiates journalists from other people disseminating ideas and information to the public? Today, the answer is hardly self-evident, and depends very much on whom you ask.

The most recent edition of the New Oxford American Dictionary, published in 2005, defines journalism as the "activity or profession of writing for newspapers or magazines or of broadcasting news on radio or television." The focus on these four specific vehicles for communication suggests the dictionary is somewhat behind the times, but it raises broader questions about whether limiting the concept of journalism to certain media makes any sense. Why should we include broadcast television, but exclude a DVD of a documentary watched on the same television monitor? Why should newspapers and magazines qualify, but not books?

The dictionary's definition also does not get us far, since it is hardly clear what qualifies as "news." What about editorials and opinion pieces? If they do not qualify as journalism, why not? If they do, then what about opinions expressed in pamphlets, in newsletters, or on Web sites?

Does whether someone is considered a journalist depend on where his or her words are published? On whether he gets paid? On whether she offers only "objective" facts or also supplies her own analysis and ideas?

It was not long ago that the boundaries between journalists and the rest of us seemed relatively clear. Those who worked for established "news organizations" were journalists; everyone else was not. In the view of most, you knew the press when you saw it.

Those days are gone. The lines distinguishing professional journalists from other people who disseminate information, ideas, and opinions to a wide audience have been blurred, perhaps beyond recognition, by forces both inside and outside the media themselves. Whatever the causes, it is harder than ever to tell who is a journalist.

The implications of this predicament are important. The question arises routinely in American courtrooms and legislatures, and at other government institutions, because there are many circumstances where those deemed "journalists" are afforded rights and privileges not available to their fellow citizens.

As with many areas of our lives, the legal system plays a central role in determining how information is collected and disseminated; who gets access to information, and when, and how; and whether someone has the right to keep information to himself, or may be compelled to divulge it. A mixture of provisions in the federal and state constitutions, statutes, regulations, and court decisions serves as the rulebook for how we communicate as a society. Unfortunately, when it comes to figuring out who is a journalist, and whether professional journalists are entitled to rights and privileges beyond those enjoyed by others, the rulebook is a mess.

But the problem extends beyond mere confusion. Although the federal courts have not (at least so far) interpreted the Constitution as distinguishing between professional or institutional journalists and other citizens, many government officials (including some judges) nonetheless adhere to the idea that traditional journalists should be afforded rights and privileges not available to others -- an idea championed by most established media organizations and many professional journalists.

For example, the District of Columbia and virtually every state have, through statutes or court decisions, established some variety of "privilege" for journalists, often referred to as a "shield law." Although the contours of the privilege vary by jurisdiction, in general they exempt those identified as journalists from having to disclose information they would be forced to reveal were they ordinary citizens -- such as the identity of a source.

Congress has yet to enact a federal shield law. It is currently considering whether to do so, prompted in part by the criminal investigation led by Department of Justice special counsel Patrick Fitzgerald, arising from the well-publicized "outing" of then-CIA operative Valerie Plame Wilson, in which several reporters were compelled to identify their sources to prosecutors because of the absence of such a law. Among those reporters was the New York Times's Judith Miller, who spent eighty-five days in prison for her refusal.

Yet even without a federal shield law, the national government has scores of rules and regulations that favor professional journalists over others. These include: Department of Justice guidelines that impose higher standards for subpoenaing "members of the news media" than other citizens; federal regulations that limit or prohibit travel to certain foreign countries (such as Iraq) but exempt "recognized newsgathering organizations"; and even the Supreme Court's own rules that for years permitted no audience members other than journalists credentialed by the Court to take notes during oral argument.

Although many thoughtful observers embrace the view that professional journalists should be routinely afforded rights and privileges unavailable to others, I believe it is misguided. The circumstances in which it is necessary and justifiable to extend preferential treatment only to them are few. We should no longer accept the routine extension of special perks and protections to professional journalists that are denied to others seeking to engage in essentially the same activities. The First Amendment is for all of us -- and not just as passive recipients of what the institutional press has to offer.

"Freedom of the press is guaranteed only to those who own one," remarked A. J. Liebling, the acclaimed New Yorker writer, many decades ago. Yet with the advent of the Internet and the World Wide Web, Liebling's otherwise astute observation seems profoundly dated. Inexpensive and powerful personal computers and software now enable almost everyone to easily share information and opinions with a global audience.

These technological advances are converging with a series of social and economic forces to transform journalism. This transformation should help bring into focus a reality we somehow lost sight of -- that journalism is an endeavor, not a job title; it is defined by activity, not by how one makes a living, or the quality of one's work. Although we are not all engaged in the practice of journalism, any one of us can be if we want to. In that respect, we're all journalists now.

Journalism in Transition

Journalism is in flux. Most newspapers and magazines face dwindling readership and the loss of advertisers (including highly profitable classified advertisements) as they compete with electronic publications and other sources of information and entertainment. Television news similarly struggles for viewers and for its self-identity, in a largely unsuccessful pursuit of ratings and profits.

At the same time, journalists are confronting a spate of high-profile efforts to compel the disclosure of confidential sources -- displacing the threat of libel lawsuits as the main legal preoccupation of many news organizations. For instance, in 2006, New York Times reporters were forced to provide prosecutors probing the leak of information related to an investigation of two Islamic charities with their phone records. Around the same time, two San Francisco Chronicle reporters were held in contempt of court and ordered to spend up to 18 months in jail for failing to reveal who provided them with secret grand jury testimony about alleged steroid use by a number of professional athletes (the reporters' jail sentences were suspended while they appealed, and later lifted when, during the appeals process, their apparent source--whom they still will not identify--pleaded guilty to several federal offenses related to leaking the grand jury testimony).

Meanwhile, the investigation into the disclosure of Valerie Plame's work for the CIA also led to the indictment (and subsequent conviction) of Vice President Cheney's former chief of staff, Scooter Libby, on charges of perjury and obstruction of justice. Not only were prosecutors able to obtain confidential information from reporters during their investigation of the revelation about Plame, but the subsequent trial of Libby resulted in the forced disclosure of information by journalists to Libby's defense team, and ultimately to the appearance of ten journalists as witnesses during the trial itself.

But the recent wave of subpoenas is not limited to high-profile cases or news organizations in major media markets. A reporter at the Wilkes-Barre Times Leader in Pennsylvania received at least three subpoenas seeking information about his interviews with a murder suspect. In Rhode Island, a judge refused to nullify a subpoena issued to a reporter from the Westerly Sun, a small newspaper serving Rhode Island and southeast Connecticut. In Mankato, Minnesota, a judge ordered a reporter from that city's Free Press to turn over his notes from a phone interview conducted with a man in the midst of a standoff with local police, which ended when the man apparently took his own life.

Nor are these efforts limited to criminal proceedings. It appears that in an increasing number of civil lawsuits (which do not involve alleged violations of criminal laws) courts are enforcing requests by private parties to compel the disclosure by journalists of information relevant to the case. One high-profile example is the lawsuit filed by former government scientist Steven Hatfill...

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