As we mull over a possible federal shield law and in the wake of the jailing of Josh Wolf (who is now free after 226 days), the question of whether a “blogger” or a “citizen journalist” is actually a Journalist — with a capital “J” — has taken front and center.
I asked that question (via email) to Kevin Bankston, a staff attorney for the Electronic Frontier Foundation. He succinctly responded, “Yes. A blogger is a journalist if they are doing journalism.”
The answer is an interesting one in the context of defining a journalist either through statute or case law. Many have qualms about the very prospect of inviting the government to define who is or isn’t a journalist. To them, the act is a form of licensing and an affront to the First Amendment.
However, Bankston’s answer shifts the focus from who is a journalist, to what is journalism.
According to Stanford Journalism Professor Ted Glasser, defining what is journalism is the lesser of the two evils.
Glasser contends that any governmental definition of a journalist would either be too narrow and exclusionary, failing to account for changes and nuances, or too broad, with the unintended consequence of granting a blanket testimonial privilege to anyone who can claim to be a journalist.
In the case of California, a shield law codified in the Constitution attempts to provide a definition of who is a journalist, but faces the problem of exclusion. A journalist is defined as follows:
“A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . 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or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”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 produces 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 California’s definition.
It is this type of exclusion that we want to avoid, says Glasser.
“We shouldn’t have a two-tiered First Amendment that gives more protections to some individuals than others,” he said. “We are much better off defining the act of journalism rather than who is a journalist.”
Glasser added that any definition would be better off coming from the courts than from the legislature (such as shield laws).
“I’d prefer the judicial branch over the legislature any day. A judge is insulated from political whims and is much more deliberative. A judicial opinion is more likely to be flexible and well-thought out with the long term in mind,” he said.
According to Bankston, such a flexible opinion came from the Ninth Circuit and Second Circuit federal Courts of Appeals in determining whether to apply a 1st amendment reporters privilege:
“The test … is whether the person seeking to invoke the privilege had “the intent to use material – sought, gathered or received – to disseminate information to the public and [whether] such intent existed at the inception of the newsgathering process.” If both conditions are satisfied, then the privilege may be invoked.” Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) (Shoen I) (quoting test of von Bulow v. von Bulow, 811 F.2d 136, 144 (2nd Cir. 1987), cert denied, 481 U.S. 1015 (1987) and applying the reporter’s privilege to a book author.)
On the opinion, Bankston said, “I think it correctly recognizes that what the First Amendment protects here isn’t a person or a sector of the media but the act of journalism, and rightly does not discriminate based on whether the person doing journalism is a professional or amateur, or based on the medium used.”
Whether “journalists” should have certain privileges is another story, but if the government must ask (and it has and will), it’s not “who is a journalist?” It’s “what is journalism?”