The shield and the sword

The Media Wonk The Senate Judiciary Committee held an executive business meeting (i.e. markup) last week where members debated the Free Flow of Information Act of 2013. Modeled on state “shield laws” the bill would create a federal shield for journalists protecting them against being compelled to testify about their sources by a federal court. But according to a McClatchy report, the bill had to be held over to the next meeting after the senators were unable to agree on a definition of “journalist” to be protected by the law.

Here’s hoping it continues to confound them.

Don’t get me wrong. As a one-time (albeit small-time) accredited journalist the Media Wonk very much wants to be sympathetic to bill’s aims. The Obama Administration’s rough and disgraceful treatment of reporters caught up in its Ahab-like pursuit of leaks and leakers really does need to stop, or be stopped. But a federal shield law, particularly now, is a very fraught way of trying to do it.

The Senate Judiciary Committee debate, as quoted by McClatchy, reveals why.

Sen. Dianne Feinstein, D-Calif., wondered whether [the bill’s definition of “journalist”] could be used to provide protections to employees of WikiLeaks, an organization that allows anonymous sources to leak information to the public. “I’m concerned this would provide special privilege to those who are not reporters at all,” she said. Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to “real reporters.” The sponsor of the bill, Sen. Charles Schumer, D-N.Y., was against that idea, since there are bloggers and others in the Internet age who don’t necessarily receive salaries. “The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that,” Schumer said. “But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.” The Standing Committee of Correspondents, a group of reporters that issues congressional press passes, requires that reporters be full time and paid in order to receive passes.

Real journalists”? “Those who a not reporters at all”? Ye gads. Do we really want the federal government trying to parse who is, and is not, a “reporter,” or what does, or does not, qualify as “real journalism”? It’s hard to imagine that coming out well.

Not only is any definition elected officials are likely to come up with for “real” reporters likely to be self-serving (i.e. those practitioners attuned by habit or professional convention to view the world through the same institutional lens as the institutions they cover) but they would be aiming at a very rapidly moving target.

Never in history, perhaps, have the means, aims, possibilities, participation and economics of information gathering and publishing been so in flux as now. Any statutory definition put in place today would be at immediate risk of obsolescence. But federal statutes are stubborn thing and do not bend easily in the face of changing circumstances.

It seems a particularly bad idea to enshrine in federal statute a definition of “journalism” based on who is doing it, or what their relationship may be to a particular employer, rather than on what is being done. Like other media industries with roots in the industrial era (recorded music, movies, books), and organized on the principles of industrial production (division of labor, high fixed costs), the “news” business is in the process of being de-industrialized, de-institutionalized, and, more critically, de-professionalized under the pressure of digital technology and a radical new economics of publishing. Erecting a statutory structure of privilege based on job descriptions more resonant of the early 20th Century than the early 21st simply seems a non sequitur, and a dangerous one at that.

The object should be to privilege the free flow of information, not certain actors over others. Creating a privilege only for “real” reporters will only invite more of the same sort of off-topic debate we find ourselves in now over the recent NSA revelations: arguing over the means and motives of a source and a reporter instead of over how to understand and respond to what they revealed.

Another reason to be wary of creating a privilege for those who go about news gathering and reporting according to a proscribed protocol (i.e. “real” journalists, working for “real” news organizations) is that it reinforces the mistaken — and in some ways pernicious — belief that the news media has some special role within our constitutional system.

At the risk of straying beyond the Media Wonk’s expertise, the idea that newspapers, or the news media generally, by virtue of the First Amendment’s guarantee of “freedom of speech, or of the press” were intended to have some sort of institutional role in popular governance, as a quasi-oppositional check on the established branches of government, has very little historical or legal basis.

newsboyNotwithstanding a smattering of contemporaneous citations (check your OED), the phrase “the press” was not at all in common use at time of the framing of the Bill of Rights as a collective noun referring to newspapers or those involved in publishing newspapers. It’s appearance in the First Amendment almost certainly was meant to refer to the free use of a printing press as a technology, not merely by the publishers of newspapers but by anyone. Most newspapers of the day had little or no staff, and what they had were far more likely to be compositors or press hands than anyone we would today recognize as a “journalist.” Publishing newspapers was the business of printers, not journalists, and for most it was a sideline to the job-work that made up most of printers’ output.

There simply was no institutional “press” at the time to be protected, let alone drafted into service of republican government. The First Amendment guaranteed the freedom of speech and the free use of mass communication technology by all; it did not privilege a particular industry or occupation.

The most logical historical inference is that the framers explicitly protected the use of the printing press in reaction to Europe’s long history of strictly regulating its use, typically in the interests of monarchs and popes. The last Licensing Act restricting the use of a printing press in England did not expire until near the turn of the 18th Century, barely a hundred years before the framing of the First Amendment.

For the first 150 years of so after its framing, in fact, courts from the Supreme Court on down consistently read the phrase “the press” as applying to a technology, to be freely used by any and all, not to a particular industry, least of all one meant to have some special role in the constitutional system (here the Media Wonk is indebted to Eugene Volokh’s 2011 University of Pennsylvania Law Review article Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today (pdf), for its invaluable review of the relevant case law and history).

Insofar as the courts addressed the First Amendment’s relevance to the press as an industry at all it was generally to assert that news organizations had no particular privilege or immunity with respect to generally applicable laws.

The first Supreme Court did not address the issue squarely until 1937, in Associated Press v. NLRB. The news agency argued that the Free Press clause gave it the right to hire and fire editors and reporters for any reason, including union membership, which the AP thought could lead to biased reporting. The court disagreed, ruling that the “publisher of a newspaper has no special immunity from the application of general laws.”

It is only in the latter half of the 20th Century that the idea began to take hold, in the popular imagination and in the courts, that the institutional “press” — media companies and the journalists that work for them — has some uniquely valuable role to play within our constitutional system that the Constitution does or ought to protect. And it’s probably no coincidence that the new interpretation emerged just as the craft of journalism was self-consciously undergoing a mass project of professionalization, largely for economic reasons.

In 1920, 92% of newspapers in America were independently owned, according to Newspaper Association of America data; by 2000, fewer than 24% were independently owned. That consolidation — driven by advertisers’ need for larger markets, the high fixed costs of new, high-speed printing technology and ready access to capital markets — raised profit margins for publishers, which meant more money to pay journalists. Turning what had been a slightly shambolic craft into a more disciplined and clean-shaven profession was a necessary cover for reporters to claim a bigger slice of those profits.

Many of the trappings of that newly professionalized journalism, however — accreditation, specialized education, formal and informal codes of conduct — had at least as much to do with keeping competition low and wages high as with improving the art. The self-aggrandizing conceit to holding a privileged status under the law further served to insulate “professional” journalists from ordinary market forces.

It was nice while it lasted, but historically speaking, the late 20th Century was an anomaly in the practice and economics of journalism, not a necessary condition and certainly not something anticipated or intended by the framers of the First Amendment.

Now, the economic underpinnings of that late-20th Century professionalization of journalism — including the claim to privilege — are being unwound as new digital tools make news gathering easier and accessible to anyone with an Internet connection and technology removes most of the fixed costs involved in publishing to a global audience. The process has been highly, even painfully, disruptive for many formerly “professional” journalists, the Media Wonk included, but it doesn’t mean an end to journalism let alone freedom of the press.

Just because the Constitution doesn’t confer a privilege, of course, doesn’t mean Congress can’t create one. It the case of a federal shied law for journalists Congress almost certainly can. But that doesn’t make it a good idea.

If ever it were possible to distinguish between a “real” (i.e. “professional”) journalist and the other kind, whatever that may be, that time is passing rapidly. Asking Congress to step in now to try to sort the wicked from the just is asking for trouble. Once in the statute books, the shield for some can mean the sword for others.

If there’s a problem with over-zealous prosecution of the laws on disclosure the answer lies in changing the laws on disclosure not in creating unfounded legal distinctions between Wikileaks and the Washington Post.