{"id":11717,"date":"2013-10-14T10:25:47","date_gmt":"2013-10-14T17:25:47","guid":{"rendered":"http:\/\/amicuscuria.com\/wordpress\/?p=11717"},"modified":"2013-10-14T10:51:57","modified_gmt":"2013-10-14T17:51:57","slug":"senate-limits-1st-amendment-protection-to-pros","status":"publish","type":"post","link":"http:\/\/amicuscuria.com\/wordpress\/senate-limits-1st-amendment-protection-to-pros\/","title":{"rendered":"Senate Limits 1st Amendment Protection to Pros"},"content":{"rendered":"

Does freedom of the Press belong only to those who own one?<\/strong><\/h3>\n

The US Senate Is Creating a Privileged Club for \u2018Official\u2019 Journalists.<\/strong><\/p>\n

It \u00a0is skirting the substantial investigative role served by independent journalists, bloggers, and nontraditional media held by federal courts to be coextensive with traditional journalism before the era of digital publication.<\/h3>\n

by Carey Shenkman<\/em><\/p>\n

\"Photo<\/p>\n

On September 12, 2013, the U.S. Senate Judiciary committee narrowly defined who the law should consider to be a journalist, by\u00a0amending<\/a>\u00a0the proposed Free Flow of Information Act (\u201cFFIA\u201d). The FFIA is a \u201cshield law\u201d that protects journalists from having to reveal their confidential sources when confronted with court subpoenas. The amendment changed the language of the bill from protecting the\u00a0activity\u00a0of journalism to protecting the\u00a0profession<\/em>. Journalists are now limited to those employed by, recently employed by, or substantially contributing to media organizations for certain minimum durations.<\/p>\n

This maneuver skirts the substantial investigative role served by independent journalists, bloggers, and nontraditional media, who are left unprotected by the statute. It also expressly excludes whistleblower organizations. By not extending protection to a vital segment of investigative newsgatherers, the amended FFIA falls short of providing real benefits. More fundamentally, the distinctions created by the bill reinforce a privileged club for professional (mainstream) journalists. In essence, the government is licensing the press, and treading down a path that\u00a0courts have for decades cautioned<\/a>\u00a0\u201cpresent[s] practical and conceptual difficulties of a high order.\u201d<\/p>\n

The Supreme Court, in 1972 in\u00a0Branzburg v. Hayes<\/em>, held that the First Amendment provides no separate privilege for reporters. This was largely due to the practical difficulty, even before the Internet, of defining who is or is not a journalist. Justice White in his\u00a0concurring opinion<\/a>\u00a0discussed that \u201c[t]he informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public.\u201d<\/p>\n

More recently, in the 2011 case\u00a0Glik v. Cunniffe<\/em>, which involved a man videotaping police using his cell phone, the First Circuit Court of Appeals\u00a0stated<\/a>\u00a0\u201cChanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.\u201d<\/p>\n

This open view of journalists is shared by academics like UCLA Law Professor Eugene Volokh.\u00a0He has argued that<\/a>\u00a0\u201c[f]reedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.\u201d After all, the First Amendment was designed to escape the official licensing system for press that existed in England in the seventeenth century. The right of the press is as much a right of \u00a0lone pamphleteers as it is of\u00a0institutionally-backed journalists.<\/p>\n

The original FFIA, which took a functional view of journalists, adhered much more closely to the current academic trend\u2014that journalism is an\u00a0activity<\/em><\/strong>, not a\u00a0profession<\/em>. Some like Professor Paul Horwitz\u00a0propose alternate theories<\/a>\u00a0such as varying the rules from medium to medium to reflect different standards in different fields. These theories, while not perfect, are significantly less controversial than narrowly defining rights in ways that courts have consistently held run afoul of the First Amendment.<\/p>\n

Another logical pitfall of the law is its explicit exclusion of whistle blower organizations, like WikiLeaks, from its narrow definition of journalism. It \u201cdoes not include any person or entity . . . whose principal function . . . is to publish primary source documents that have been disclosed to such person or entity without authorization.\u201d Why exclude these? One possibility is \u201cprotecting national security\u201d\u2014but the logic behind this is dangerous. It is the same as forcing reporters to reveal their sources when stories inconveniently expose wrongdoing. Claiming that document-sharing organizations must reveal sources\u00a0is fundamentally indistinguishable from forcing investigative reporters to do the same<\/em>.\u00a0And if any form of investigative journalism (including publishing documents) presents a clear and imminent danger to U.S. security, it can be dealt with on a case-by-case basis.<\/p>\n

An alternative reason for excluding leaks organizations and nontraditional media is their perceived lack of editorial standards. Without a formal editorial process, the argument goes, these actors cannot be trusted. Adherents to this tack ignore the multitude of WikiLeaks releases that are\u00a0redacted<\/a>,\u00a0selectively published<\/a>, expose matters of great public interest (i.e. corruption, war crimes), and catalyze substantial public debate. These elements certainly constitute editorial discretion over timing, quantity, and content, and capture the essence of investigative reporting. The argument also ignores that bloggers and other independent journalists possess identifiable methodologies for their reporting\u2014for instance, the\u00a0frequent use of hyperlinks<\/a>\u00a0for substantiation and attribution.<\/p>\n

The issue then is not so much that nontraditional media entities lack editorial standards, but that Congress disapproves of these standards. It is the same logic that leads the FFIA to exclude a good number of bloggers and independent journalists who may not adhere to traditional institutional editorial standards. It is the same logic that perhaps caused\u00a0The New York Times<\/em>\u00a0to pejoratively\u00a0call Glenn Greenwald<\/a>\u00a0(who broke Edward Snowden\u2019s leaks) a blogger and\u00a0Alexa O\u2019Brien<\/a>\u00a0(whose detailed coverage of the Chelsea Manning trial was quoted extensively by the rest of the press) an ‘activist’, instead of calling them ‘journalists’. Greenwald\u00a0Tweeted<\/a>\u00a0in response \u201cOnce a \u201cblogger,\u201d always a blogger \u2013 I love the NYT.\u201d<\/p>\n

The contradictory logic of the FFIA amendment is exposed considering that major news organizations\u00a0released many of the same documents as WikiLeaks<\/em>. The Afghan and Iraq War Logs of WikiLeaks\u00a0were also distributed<\/a>\u00a0by\u00a0The<\/em>\u00a0New York Times<\/em>,\u00a0The Guardian<\/em>,\u00a0and\u00a0Der Spiegel<\/em>. The bill creates a double standard in the face of a subpoena\u2014WikiLeaks would have to divulge its sources, while the latter would be protected. WikiLeaks would be denied protection despite engaging in similar activity as the publication of the \u201cTop Secret\u201d Pentagon Papers by\u00a0The New York Times<\/em>\u00a0more than thirty years ago.<\/p>\n

Indeed, the whole FFIA amendment is permeated by an undertone of institutional elitism and a rejection of new media. This rejection of new media boasts some unexpected followers. Floyd Abrams, a prominent First Amendment litigator who defended\u00a0The New York Times<\/em>\u00a0in the Pentagon Papers case,\u00a0does not consider WikiLeaks to be journalism<\/a>. He represents large press corporations and is also highly skeptical of extending shield laws to new media. Judge Sentelle of the D.C. Circuit,\u00a0in a concurring opinion in a journalist subpoena case<\/a>, wrote of the \u201cstereotypical blogger sitting in his pajamas.\u201dOther legal scholars identify<\/a>\u00a0the perception that new media is somehow a \u201cless noble pursuit than traditional journalism.\u201d<\/p>\n

Biases of lawmakers should not become law. Courts, since decades before the advent of the Internet, have avoided creating classes for journalists. It creates unsustainable logical contradictions and is ultimately bad for investigative reporting. In the\u00a0words of Professor Linda Berger<\/a>, \u201c[N]o patriot printer or colonial pamphleteer had a journalism degree. Certification by a government agency or by a professional group carries the possibility of de-certification based on value judgments or viewpoints.\u201d Legislation like FFIA teeters this country closer to a future where journalism bears the government\u2019s stamp of approval.<\/p>\n

\n

Carey Shenkman is a legal scholar specializing in freedom of expression, press, and human rights. He is a graduate of NYU School of Law and a former Notes Editor on the\u00a0NYU Law Review. He can be contacted via Twitter @CareyShenkman.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Does freedom of the Press belong only to those who own one? The US Senate Is Creating a Privileged Club for \u2018Official\u2019 Journalists. It \u00a0is skirting the substantial investigative role served by independent journalists, bloggers, and nontraditional media held by … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-11717","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/11717","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/comments?post=11717"}],"version-history":[{"count":5,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/11717\/revisions"}],"predecessor-version":[{"id":11722,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/11717\/revisions\/11722"}],"wp:attachment":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/media?parent=11717"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/categories?post=11717"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/tags?post=11717"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}