Patterico's Pontifications

3/2/2009

Congress vs. Citizen Journalism

Filed under: General — Patterico @ 10:44 pm



There’s a bill in Congress that would give journalists the right to keep their sources confidential. But the House version defines journalist to exclude hobbyists. Under the House language, the party invoking the privilege must engage in newsgathering “for a substantial portion of the person’s livelihood or for substantial financial gain.”

In other words, Chuck Philips and Mary Mapes can keep their sources confidential; I can’t.

I’m conflicted on making such privilege too broad — for example, I don’t think such privileges should defeat subpoenas in criminal cases. (I don’t know where the bill stands on this issue.)

But I’m very leery of any bill that confers privileges on “professional” journalists while denying them to citizen journalists.

37 Responses to “Congress vs. Citizen Journalism”

  1. Why does paying money to someone make them a journalist? And how do you define the job itself? And how do you define income?

    This is a liberal’s dream: a way to get some of the benefits of the Fairness Doctrine without a nasty fight over the First Amendment, which, as we all know, doesn’t actually cover a public right, but only the right of a state publishing agency similar to the public militia being the only true beneficiaries of a so-called right to bear arms.

    (The last part is sarcasm, Mr. Heston.)

    steve miller (4bda12)

  2. Steve, how is this related to the fairness doctrine?

    I don’t agree with where they’re drawing the line, but I think I understand what they’re trying to do: extend the privilege of keeping sources confidential, but limit the scope so that the privilege isn’t so widely applied as to make compelled testimony impossible. The idea on the one hand is that the ability to keep sources secret is essential to the ability of the press to get people to talk to them; and that, without that ability, all sorts of nefarious things will never come to light. The idea on the other hand is that if you extend that privilege too widely, the criminal justice system will be crippled.

    Maybe there’s no way to do achieve both ends; and certainly drawing a line between the ‘official’ press and the unsanctioned, quasi-illegitimate press is a bad way to go (and something I think probably is inconsistent with the spirit of the first amendment). But I can understand the desire to try.

    aphrael (9e8ccd)

  3. Aphrael, it’s not directly connected. It’s (in my mind) a way to get control over what’s being said publically – “professional journalists” get a pass vs. not protecting bloggers and hobbyist journalists.

    It’s a way for the state to pick a class of people who’s rights it will protect. Like the Fairness Doctrine, it limits speech.

    steve miller (4bda12)

  4. And I don’t understand the desire to try. Either everyone can protect their sources, or no one.

    I don’t agree that just because someone has the moniker “journalist” that his so-called sources can be shielded from the law. That seems to carve out a huge exception to the philosophy that Law is King. Instead, it lets unelected and unresponsive journalists and editors pick which sources they will hide.

    You want to shield your sources? Fine, then let the court be closed while you testify. But it goes into the record, and the record can’t remain sealed forever.

    Otherwise the suspicion is that you (the journalist/editor team) just pulled it out of your hat.

    steve miller (4bda12)

  5. If journalists want confidentiality, then force them to get a rigorous professional license like a medical license or legal license. Otherwise, they are just chimps with a typewriter.

    Perfect Sense (0922fa)

  6. I’m not sure I believe this would pass Constitutional muster. There’s no basis in the First Amendment for a Reporter Privilege, which is what this is about. And it strikes me that a criminal defendant’s 6th Amendment right to “compulsory process” could be compromised by this law.

    I don’t see how it can stand. (At least in any court except the Ninth Circuit.)

    Steven Den Beste (99cfa1)

  7. Easy way to protect moles from prosecution. “You can tell me. I’m a reporter and I don’t have to give your name.” Then there’s sock puppet sourcing.

    And, yes, back-door internet fairness doctrine.

    John Hitchcock (fb941d)

  8. So, Money isn’t Speech, but Lack-of-Money isn’t Press?

    Kevin Murphy (0b2493)

  9. I like how you pulled McCain-Feingold into that.

    John Hitchcock (fb941d)

  10. Disclosing secrets is a Federal offense. Are we voiding this now?

    Amphipolis (fdbc48)

  11. Why does paying money to someone make them a journalist?

    Well, paying someone for sex makes them a prostitute, so I guess it’s a parallel situation.

    Rob Crawford (04f50f)

  12. There is no way to distinguish between “Anonymous Source” and “I made it all up”.

    Give the many cases when reporters stories have failed verification on major details, and even the entire story, why should anyone believe anything from an “Anonymous Source”.

    LarryD (feb78b)

  13. LarryD – why should anyone believe anything from a Glenn Greenwald source ?

    Alasdair (e7cb73)

  14. OH!!!eleventy!!! I has a kweschun!!!!eleventy!!!

    If I run a blog with adspace and I’m currently unemployed, does my nickel-a-month “income” from my blog (that won’t get to me before a c-note) make me a professional journalist?

    John Hitchcock (fb941d)

  15. This whole protecting the source boo-ha has always struck me as the natural progression of the way the media views themselves, above all others. Has the protecting the source privilege been upheld anywhere, or is it simply the media’s chance to play the martyr?

    JD (11141b)

  16. It would be a huge mistake to create a government-approved class of journalists, with privileges that can be taken away if the government is displeased.

    Bradley J. Fikes, C.O.R., who wants DRJ back! (0ea407)

  17. Bradley – Just so I am clear, even though you are employed in such a capacity, I do not include you in that group of the media that makes me want to spit.

    JD (11141b)

  18. No worries, JD. Much of the media make me want to spit, too. :-)

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  19. The local anchor tonight was teasing an upcoming story about new car sales. He said something to the effect that (paraphrase coming) “people are not buying new cars. How are they getting around?” with that serious yet puzzled look on his face. My barely English speaking mother-in-law said maybe they are buying used cars, or driving the cars that they already have, and then cussed at him in Vietnamese. I was rolling.

    I have often said that people that stupid should be visibly painful, but I am going to revise that. People should get an ice cream headache / brain freeze when they say things that profoundly stupid.

    JD (11141b)

  20. Much better to say “You want to publish something? Go ahead – but back up your facts.”

    How hard is that? We seem to think (well, me, anyway) that a newspaper won’t like or stretch the truth – but the newspapers are no more reliable than any other source of news. Printed gossip is still gossip, and when an anonymous source is printed as a source, how can it be refuted?

    I’m not saying that ALL newspapers are ONLY gossip. I’m just saying – just because it got printed, doesn’t mean it’s the whole truth. Newspapers have their agendas, too.

    My local papers (plural!) are pushing for us to approve the latest school bond. They have had front page stories for weeks about overcrowded schools, kids eating lunch while seated on the floor, dingy hallways – poor kids! Nothing about the impact of rising taxes on those with fixed incomes, or old people being forced from their homes, or the COMPLETE lack of accountability on spending in the local school district. It’s all about the need for more money, but there’s nothing to show that the money currently spent is being spent wisely. (In fact, one of the more egregious examples of stupid spending is that the school built a sports complex in an area they KNEW would be needed for expanded parking — we all told them about it when they did so a few years ago — and now part of the bond is to pay the cost of moving the complex across the street.) The goal of the stories is to show how the bond is 100% good. Why these newspapers want this, I don’t know. But it’s dishonest to me. Where’s their skepticism?

    So yeah, newspapers have agendas, and can slant the news simply by the articles they choose to publish.

    steve miller (c76b20)

  21. Were I the type to weap, I would weap at the thought of Hacks being part of this group that calls themselves the media.

    Dummerer than a Hack of sacks, or a sack of Hacks.

    JD (11141b)

  22. JD, I believe that Weekly World News qualifies as the media because (a) they print on newspaper and (b) there are pictures.

    So yeah, Snacks Nabisco might just be qualified as a “media” person.

    steve miller (c76b20)

  23. By Congress’ definition, ie. “for a substantial portion of the person’s livelihood or for substantial financial gain.” does that not make it quite subjective based on what one considers to be substantial?

    JD (11141b)

  24. aphreal said:

    Steve, how is this related to the fairness doctrine?

    I don’t agree with where they’re drawing the line, but I think I understand what they’re trying to do: extend the privilege of keeping sources confidential, but limit the scope so that the privilege isn’t so widely applied as to make compelled testimony impossible. The idea on the one hand is that the ability to keep sources secret is essential to the ability of the press to get people to talk to them; and that, without that ability, all sorts of nefarious things will never come to light. The idea on the other hand is that if you extend that privilege too widely, the criminal justice system will be crippled.

    Maybe there’s no way to do achieve both ends; and certainly drawing a line between the ‘official’ press and the unsanctioned, quasi-illegitimate press is a bad way to go (and something I think probably is inconsistent with the spirit of the first amendment). But I can understand the desire to try.

    You’re almost right: This really has nothing to do with the Fairness Doctrine. It does have to do with the First Amendment.

    There’s no such thing as a “unsanctioned, quasi-illegitimate press.” The press is not some government-approved apparatus. It is whatever any person thinks it should be.

    From a governmental perspective, everyone is the “press.” My journalism degree did not grant special powers or privileges to me. Nor should it.

    Yes, the Supreme Court has granted some protections to the press, but those protections extend to individuals as long as they are not libelous.

    However, I will grant you, the SC has not ruled on Web sites, yet, but I would be interested to see how they could limit the First Amendment to only those who work in “official” press.

    If they do, were are truly doomed.

    Ag80 (3e2c59)

  25. Sorry, “we’re” not were. I don’t think we’re turning into wolves, yet.

    Ag80 (3e2c59)

  26. I am pretty sure that Ag80 is one of those media people that I would not want to spit at.

    JD (11141b)

  27. “But I’m very leery of any bill that confers privileges on “professional” journalists while denying them to citizen journalists.”

    I would guess most privileges not based on simple relationships (like husband-wife) are tied to professions no? Like priest-penitent is for people who are actual priests, not just a casual commenter on spirituality. Same with Doctor-Patient.

    imdw (aacaa9)

  28. Leave it to imdw to bring the inane.

    JD (11141b)

  29. Freedom of the press is a right, not a privilege. If we create a special class of journalists, so defined by the government, they will be vulnerable to having that privilege taken away. Even worse, it will widen the gulf between the public and journalists, which is bad for both.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  30. Before I go any further, I again want to point out that people like Bradley and Ag80 should not think that this is directed at you …

    The idea that being a member of the media is in any way comparable to being a priest or a doctor, or even an ugh attorney is so fucking laughable that anyone that attempts to make that analogy should immediately get an ice cream headache that refuses to go away. There is a difference, perhaps not but it is my understanding that there is, between what are actually professions and careers.

    JD (11141b)

  31. I like the idea of accrediting journalists, so long as some non-journalists and non-politicians get to establish the standards.

    JD (11141b)

  32. I think the First Amendment (“Congress shall make no law…”) is about right.

    And shield laws in my opinion are unwanted. But that’s my opinion.

    Congress should stay out of the business of regulating speech and news and stick with what it knows.

    Which might not be a very large set of tasks.

    steve miller (c76b20)

  33. Congress should … stick with what it knows

    Ghey prostitute rings in DC condos?
    Hitting on pages?
    Driving cars towards the Capitol building while moellered?
    Writing bad checks?
    Taking kickbacks?
    Being whores?
    Botox?
    Talking points du jour?
    Lying?

    JD (11141b)

  34. imdw said:

    “But I’m very leery of any bill that confers privileges on “professional” journalists while denying them to citizen journalists.”

    I would guess most privileges not based on simple relationships (like husband-wife) are tied to professions no? Like priest-penitent is for people who are actual priests, not just a casual commenter on spirituality. Same with Doctor-Patient.

    Sorry, but no. The press is not a religious- or government-sanctioned institution. Anyone who can afford to buy the paper, or the airwaves, or access to the internet is a “journalist.”

    Sure, there are organizations — and unions — that provide guidelines and ethical standards for journalists.

    However, again, the First Amendment guarantees that anyone can speak their minds about any issue or write what they want about any issue. There is no special privilege conveyed to “journalists.”

    They are simply citizens working in a job that disseminates information. They are not afforded any special considerations under the Constitution.

    Sure, there have been cases in the SC that have granted the press certain sanctions, such as the New York Times vs. Sullivan, but I see nothing that would prohibit those same considerations to any citizen as long as that person’s writing or reporting met the court’s requirements.

    Once again, government-sanctioned press is the way to disaster.

    Ag80 (3e2c59)

  35. Ag80 – It is truly sad that the Leftists view a government sanctioned press as a good thing, yet will also have the audacity to claim that they support the 1st Amendment.

    JD (11141b)

  36. Ag80, at 24: as a constitutional matter, I think you’re right, which is why I said I don’t think it’s the right solution and that it’s probably unconstitutional.

    That I am sympathetic with the Congress’ goals does not mean I am sympathetic with their means. :)

    aphrael (9e8ccd)

  37. “The idea that being a member of the media is in any way comparable to being a priest or a doctor, or even an ugh attorney is so fucking laughable that anyone that attempts to make that analogy should immediately get an ice cream headache that refuses to go away.”

    That’s why I’m saying this is difficult. We don’t have the analogy. Amateur healers don’t get the doctor patient privilege. Neither does someone that talks to you spiritually. Those privileges work because we have these dividing lines. Are there going to be any dividing lines in a reporter’s privilege? Or will someone that tells me something based on a comment I wrote have privilige?

    imdw (de7003)


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