How Do You Protect That Which You Cannot Define

(revised) By MahaAtal - 17 May 2009

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.

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.

An Overview of Media, Who is Press?

These clamorers include:

1) paid reporters with professional news organizations; 2) full-time bloggers, amateur or professional; 3) citizen-activists who post informal opinions or eyewitness accounts.

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.

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?

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?

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.

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?

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.

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.

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.

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.”

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.

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 run into their own constitutional barriers.

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.

* 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.

-- MahaAtal

I think I agree with Dana here. I understand Maha's intuition, but I don't think the arguments work as stated.

The "privileges and responsibilities" part of the argument makes some sense, insofar as there is arguably a journalistic professional standard; however, this is not a legal responsibility to balance the legal privileges given to the press under US law. I am no expert in libel, but I do know something about it, and Dana is absolutely right - the New York Times line of cases may be interpreted as actually extending privileges to the press that are not available to ordinary actors in a libel context (although the law on press versus ordinary actors is not entirely settled). While Jonathan is right that libel is treated somewhat differently online (in the context of republishing other people's defamatory statements), this does not really address the point that Dana was making - that there does not seem to be any consistent legal set of duties that balance the privileges the professional press have been afforded.

If there is no legal trade-off, the argument has to be as you state above: that the professional press's self enforced code of conduct is what justifies legal privilege (now that the internet has largely eliminated the technological reasons for the institution). This might sound better intuitively, but using incumbent status or professional credentials as a proxy for determining who is a "real journalist" in the professional-code-of-conduct sense doesn't seem like a very reasonable heuristic to me. If you think it is, I think you need to better explain why this is the case (the Jay Rosen article that you cited points out some instances in which it doesn't work).

I don't think the Constitution argument works at all. You use the term anarchist, which (aside from its inflammatory appeal) has been used so many times by so many different people that it is not at all clear what it means in this context. At its core, anarchism generally refers to a system that attempts to minimize coercion (and therefore hierarchy) - in this sense, the Bill of Rights IS something of an anarchist text: it is delimiting zones of personal freedom in which the federal government cannot bring coercive force. I agree that the founders probably didn't intend to create a Barcelona style anarchist syndicate, but that is clearly not what the argument is about.

Your interpretation of the constitution would seem to be much more radical: that the Bill of Rights is meant not to establish areas of (somewhat) inviolate personal rights, but rather to enshrine a hierarchical system of greater and lesser individual rights within the Constitution itself. To my mind, this seems exactly the opposite of what most people think of as the purpose of the Bill of Rights (allowing that the Constitution did bless this kind of system in the context of slavery).

I think your argument would have more purchase if you focused on something that was NOT affected by the change in technology and was still a valid reason for exclusion - press passes for instance. Physical access to public figures and events is still a scarce resource, and arguably could still justify a professional elite...

-- TheodoreSmith - 8 Apr 2009

Ted has already addressed at least some of what I planned to say, but there’s a bit more I’d like to address.

First, I want to say I’m not entirely unsympathetic when you say that you are “trying to preserve and protect [a certain] set of [journalistic] practices.” I do, in fact, have at least some appreciation for the journalistic values you espouse, but I simply do not believe that the First Amendment should be the mechanism you shanghai to protect them. When you note that “[t]here 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,” you miss the point--- the law has literally no relation to the personal difference you experience when you work as a “blogger” or a “reporter.” This is what Ted is pointing out when he notes that there is no “legal responsibility to balance the legal privileges given to the press under US law.” You may say there is a difference between being a reporter and being a blogger, and perhaps there is, but this is a norm that can and should be enforced either informally, via social systems and pressures, or formally through journalistic education which indoctrinates such values in its students. You might also enforce this as Ted also notes through other means, like the distribution of press passes. The Bill of Rights, on the other hand, is decidedly unsuited to create and enforce a system that is “inherently unequal.”

I also want to address this point: “[W]hen 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.” First, and perhaps least importantly, as to your contention that “we’ve long abandoned literal interpretation,” there are a few Justices on our Supreme Court you might like to meet--- namely Scalia and Thomas. I realize from your response that you aren’t a law student, but if you were, you would know (probably in most instances to your unending chagrin) that strict originalism and literal interpretation of text are at a high water mark of their influence on our Judiciary, both in the Supreme Court and elsewhere.

More importantly, is this point: “As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content.” This is quite simply untrue. You may disagree with me normatively, but there is absolutely no evidence, historical or legal, that supports your position that the intent of the Free Press clause was to preserve the inequalities you propose. The Free Press clause was meant to ensure that the federal government was not able to circuitously silence men by silencing the machines they spoke by. The idea that the Bill of Rights is intended to “preserve” a distinction which didn’t even exist at the time it was written is just, to be blunt, absurd. Even if you were correct in your assertions more generally, Constitutional times have changed, and we now read the Bill of Rights in the context of the 14th Amendment which ensures that the no persons are denied the “equal protection of the laws,” including presumably, the most important protection of all--- the freedom to speak, no matter who we are or what our "title" is.

-- DanaDelger - 08 Apr 2009

Ted: I apologize if I am not as familiar with this information, but what additional privileges do the NYT v. Sullivan cases extend to The Press, which are not extended to ordinary actors?

-- JonathanBonilla - 08 Apr 2009 (oops)

Sure Jonathan, I think I was a little oblique in my earlier statement. I apologize. NYT v. Sullivan held that "actual malice" is required in a libel suit against a public figure; however, its holding only covered the situation in which the defendant was a member of the media. Lower courts have come out different ways on whether this protection applies equally to "nonmedia" defendants. The applicability of the New York Times malice standard to cases involving public-figure plaintiffs and nonmedia defendants has to my knowledge not been ruled on by the Supreme Court. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 779 (1986); Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

-- TheodoreSmith - 8 Apr 2009

Ted--For the best explanation of how the professional code of conduct might work as a heuristic, and more generally for good counter-arguments to Rosen, I still recommend Nick Lemann. You suggest separating technological from non-technological questions, but at least in media circles, they aren't separate. Many citizen-bloggers make the argument that BECAUSE technology makes Speech and Press equal everyone should get those Press passes in order to produce their Speech content. To argue that some of them shouldn't get passes (which I believe), you have to untangle the question of what technology does to the Speech/Press line.

On anarchism. There are two ways to go forward if, as the tech-evangelists say, Speech/Press is over as a division. One is to say "We are all Speech," and get rid of press conferences altogether. The other is to say "We are all Press," and authorize everyone to show up at the White House looking for a press pass. Both sound to me like routes that would hardly help the functioning of the State; to the extent that my understanding of anarchism is resistance to the State as a coercive authority, celebrating these outcomes strikes me as an anarchist reaction. Most journalists, on the other hand, think of the Press as an institution that critiques and scrutinizes individuals in power for the ultimate benefit of the State and the political system. That's part of the professional code you imbibe at any J-school: anti-corruption, but not anti-authoritarian.

If the Bill of Rights were a governing document by itself, it would be pretty anarchist, but it's not. It's a caveat attached to the Constitution to facilitate the imposition of a far more hierarchical and powerful State than the hapless governing structure that proceeded it.

-- MahaAtal

Hey Maha- as Dana mentioned, I think one of the problems we are having here is that we are arguing about two different things. There is the normative issue of "would a world without distinctions between citizen and professional journalism be worse," and there is the legal issue of "is there, or can there be a legal/constitutional distinction between citizen and professional journalism." While some of us may disagree with you on the former question, I think it is the latter question that we (as law students) are really getting hung up on.

Normatively, you may be right that professional journalism is something we should preserve; it certainly seems as though there is a distinct role that it plays in the current structure of the state. Whether or not this role can be met by amateur "citizen journalists" on the internet is certainly a matter for debate - this is, to my understanding, what Nick Lemann was writing about in the article you cited.

What this does not do (and what Lemann's article does not do), is discuss how this distinction would actually play out legally. If you believe that there should be legal distinctions between professional and amateur journalists, you should probably be prepared to present a theory upon which this legal distinction can be based. If I am a judge, and an attorney wants to call you in to testify about a source, what should I look to in order to decide if the Branzburg compelling state interest test applies? (Shield laws themselves, it should be noted, are not constitutionally based, but are rather laws passed by the states.) Having answered this question, what justifies making this distinction/using this particular test?

Because the first amendment guarantees freedom of the press, the second question must be framed in terms of the constitution; you would have to make an argument that the constitution makes or supports the same distinction you are using. This is where I begin to have trouble - the bill of rights is certainly an amendment to the constitution; however, it addresses a very different set of issues from the body of the constitution itself. Just as one would not ordinarily look in the executive clause of the constitution to determine a power of congress, it is tough to argue that we should be looking at the bill of rights to determine the hierarchical structure of the press. If you can find any basis whatsoever for this argument, you are more of a scholar than I. Please understand that I am not arguing here with the normative argument that such a distinction would "help the functioning of the State." I just don't see any legal basis for the distinction in the rights granted by the constitution.

Also, you say "[the bill of rights is] a caveat attached to the Constitution to facilitate the imposition of a far more hierarchical and powerful State than the hapless governing structure that proceeded it." If you mean that the bill of rights was an attempt to make the structure of the constitution more palatable to congress, you may be able to argue for your proposition (though it was passed four years later, and I don't see how it really helps your point). If you mean that the bill of rights was an attempt to strengthen the federal state or establish some new system of press-hierarchy, then as Dana says, you are just wrong - there is, as far as I know, no evidence whatsoever to support this claim. The question you have to answer is how the phrase "or of the press," in the middle of a clause limiting the powers of congress, is meant to establish a hierarchical press. Certainly, the constitution has been interpreted in some unconventional ways over the years, but you have a tough road to hoe, and the normative argument that you think it would be better if it did will not get you there (although I think the normative paper would be a fine paper to write). As Dana said, the constitution just doesn't seem like the place for what you are proposing: I think it would be normatively better if the free speech clause guaranteed internet access to all, but I have roughly no prayer of convincing anyone that this is actually what the constitution says. If you wanted to say that states should pass shield laws making a professional/amateur distinction based on your normative argument, this might be a good paper to write - this would not, however, be a constitutional matter.

And again, regarding the "anarchism" claim: it doesn't seem to be doing anything other than giving you a rhetorically flashy retort. As you say, the constitution is not very anarchistic, but the bill of rights is (at least to some degree). Saying that giving press freedom to all is an "anarchist reaction" doesn't mean anything - allowing everyone free speech is an "anarchist reaction." Allowing everyone free religion is an "anarchist reaction." Other than the "ooh anarchism is bad" rhetorical play, it doesn't add anything to your argument.

The absurdity of giving press passes to everyone is exactly why I though you should focus on something like that when making your argument. Neither I nor I imagine Dana (at the risk of putting words in her mouth), think you should be constitutionally obligated to give press passes to every single person who has a blog... this is a straw man. Clearly, in this area, there is some difference. So nobody here is going to make the argument that technological ease of publishing and communication eliminates the need for discretion in the physical world - this is clearly a terrible argument. BUT, an equally terrible argument seems to me to be that scarcity in the physical world justifies an imposition of hierarchy in the digital world. It is absurd to imagine everyone with a news blog showing up at the president's press conference, but less absurd to imagine everyone publishing news on their blog having some claim to journalistic protections - the latter are not scarce resources (though clearly it would have an impact on the justice system).

Wow... long post. Sorry I wrote so much.

-- TheodoreSmith - 9 Apr 2009

  • Here I feel as though I should have stepped in earlier, as though I could do anything to ameliorate the collision between journalists' self-image and the social situation. A collection of people who can even imagine that the difference between subpoenas the prosecutor can expect to enforce and those that will cause him immense trouble and waste of time will rest on whether someone is a "regular" or irregular blogger are not going to fare well in conversation with (even) law students.

  • To begin with, I think I should agree with the chorus of legal opinion expressed already: there is no style of constitutional interpretation that can infer a privilege against disclosure of sources from the first amendment. A statutory privilege, such as is created in some states, could (but won't) pass through Congress. Such a law could do many things:
    1. It could create a privilege like lawyers' privilege, which you may recall is actually the client's privilege and cannot be invoked by the lawyer save on the client's behalf. Such a privilege would be actually a source's privilege rather than a journalist's privilege. That's why it isn't going to happen.
    2. The statute could create a rule against issuing and enforcing certain kinds of subpoenas. This would provide some particular direction to prosecutors. Such a statute is very unlikely, but it could happen. One reason it is so unlikely is that most prosecutors who are smart enough to be entrusted with the power to issue such subpoenas are politically-capable and sensible enough not to wind up jailing someone for a long period of time without making sure that absolutely no one thinks she's a hero first. Patrick Fitzgerald, however, is a prosecutor so smart and so relentless and so abusive of power in a totally "high-integrity" self-righteous way that he allowed himself to be drawn into the confrontation with Miller, was too dogged and combative to back down and too honorable in the prosecutor's code to smear her even with the truth about her, thus making it possible for her to pretend to be a hero for a little while. Making a statute to prevent Patrick Fitzgerald from confronting Judith Miller isn't really important work, and the United States Senate would rather get lots of fawning media attention and then not do it.
    3. it could make information gleaned from compulsory testimony by reporters inadmissible. This would allow prosecutors to deal with Fitzgerald/Miller situations, where the prosecutor needs to establish that something was said to a reporter in order to establish that somebody lied, without being able to base a prosecution on it. In Washington, of course, that would change the government information distribution structure built around deliberate leaking. Which is why the Senate is not going to do it. Journalists would hate it too, even though it would make good legal sense.

  • What you need to take away from the conversation with your colleagues, however, is the point made several times in several different good ways: a special constitutional dispensation for a particular industry is not going to be read into the first amendment anymore. That was an aberration in the larger historical contour, based on the temporary, hypertrophied power of industrial distributors who came to call themselves "media." That the dean of the J-School and the members of the Newspaper Guild see very clearly and write very forcefully that Western Civilization depends on the continuation of special constitutional respect, which should now be paid to members of this intellectually and ethically demanding craft and also to Arianna Huffington, we are not in the least surprised and even less impressed.

  • More could be said about the nature of the "literalism" involved in pointing out that the eighteenth century language before us uses "the Press" to mean a thing rather a class of persons. But I'll reserve it. This was an immensely interesting and useful interrogation of differences of perspective. I fear that it cannot have been pleasant for you, despite its great value on all sides, and I'd like to express gratitude.