WHO’S THE JOURNALIST?
By Anthony Sanchez
In the old days, it was easy to recognize who was a journalist,
one belonging to that class of elite individuals who could
bring down a
president with their powerful craft:
simply look for the notebook and the press
card stuck into
the side of a fedora. But digital technology has turned
everything
upside down, and those days are long gone.
That, and no one wears
fedoras anymore.
Now, with a digital camcorder, a computer, and an Internet
connection, anybody can be boat-rocker by capturing a Macaca
moment or bringing
attention to Don Imus’ racist broadcast
on their blog. So the question must be
asked:
just who is a journalist, nowadays?
It is an important question in light of both the jailing
of
videoblogger Josh Wolf (now free after 226 days in jail)
for refusing to comply
with a subpoena for his unaired footage
of a 2005 demonstration, and the
ongoing debate over
a federal shield law to create a journalistic privilege to
protect
the sources and methods of journalism from compelled disclosure.
It is
here that the definition of a journalist begins to matter:
to whom would this
journalistic privilege apply?
However, defining a journalist is no easy task, and many have
qualms about the very prospect of inviting the government
to define a
journalist. To them, the act is a form of licensing,
and therefore an affront
to the First Amendment.
As Floyd Abrams, a legendary First Amendment lawyer who argued
for a journalistic privilege in the Supreme Court case Branzburg v.
Hayes, has
said, “…merely determining the scope of the privilege
(when would it apply?)
and identifying who would receive it …
[are] difficult matters at best.”
Indeed, defining a journalist is risky business. Any
governmental
definition of a journalist could either be too narrow and
exclusionary,
failing to account for changes and nuances
(such a freelancer or
bloggers), or too broad, with the unintended
consequence of granting a blanket
testimonial privilege to anyone
who can claim to be a journalist.
For example, California’s shield law, which is codified in the
state
constitution and attempts to define a journalist, faces the problem
of
exclusion. A journalist is defined as
“a publisher, editor, reporter or other
person connected with
or employed upon a newspaper, magazine, or other periodical
publication.”
It is these people, the law goes on to say, who
“ shall not be
adjudged in contempt…for refusing to disclose
the source of any information
procured while so connected or
employed for publication in a newspaper,
magazine or other
periodical publication, or for refusing to disclose any
unpublished
information obtained or prepared in gathering, receiving or
processing of information for communication to the public.”
Whether a freelancer who writes while not connected to a news
organization (like Josh Wolf) or an individual who produces
a piece of
journalism only once on his blog is a journalist
is not entirely clear by the
state of California’s definition.
Is a blog considered a “periodical
publication”?
When I asked Kevin Bankston, a staff attorney for the Electronic
Frontier Foundation, whether or not bloggers are journalists,
he succinctly
responded,
“Yes. A blogger is a journalist if they are doing journalism.”
Bankston’s response is an interesting one as it shifts the focus
from the question of who is a journalist, to the question of
“what is
journalism?” I asked Bankston if a good legal definition
of journalism existed.
He responded that a flexible definition
came from a case in which the Ninth
Circuit and Second Circuit
Federal Courts of Appeals attempted to determine
when to apply
a First Amendment journalists’ privilege.
The courts determined that the journalists’ privilege applied
when “the person seeking to invoke the privilege had ‘the intent
to use
material - sought, gathered or received - to disseminate
information to the
public and [that] such intent existed at the
inception of the newsgathering
process.’
If both conditions are satisfied, then the privilege may be invoked.”
Bankston argued that this definition “correctly recognizes that
what the First Amendment protects here isn’t a person or
a sector of the media
but the act of journalism.”
Furthermore, he said, the decision discriminates
neither
on the basis of whether the person doing journalism is
a professional
or amateur, nor on the basis of the medium used.
Bankston is on to something here. The First Amendment
does not
favor one class of individuals over another.
If anybody can do journalism at
any time, then the entire
debate of protecting journalism has been mistakenly
focused
on the exclusionary, who part of journalism rather than
the what part
of journalism.
The constant advent of new technologies means that journalism
is
a rapidly changing field. The definition of a journalist,
if codified under the
federal shield Law, must be flexible enough
to allow for these changes in the
reporting business and be rooted
in what is journalism.
So who is a journalist?
A journalist is simply someone who does
journalism —
who gathers news and information for the purposes
of dissemination
to the public.
*** Anthony Sanchez is the director of the Center on Media
for the Roosevelt
Institution at Stanford. He is a senior in
Communications and Creative Writing
Recent Comments