Amusing as it as, I haven’t had time to do more than quickly read the symposium entries on our topic this week because I have been busy working on a paper and presentation about the Internet’s intersection with defamation law at 47 U.S.C. § 230. The statute provides some immunity to Internet “re-publishers.” For now, however, I thought I’d move closer to the source: Internet authors and the First Amendment—specifically, the Press Clause, and “journalist” status.
The implications of this status include, in many states and some federal circuits, a qualified privilege against compelled testimony, as well as the protections granted to journalists under federal law and regualtions (as were discussed recently in regards to the Scalia-marshal debacle).
A few years ago, when at the paper, I wrote an editorial about Vanessa Leggett. Leggett “ha[d] been researching the murder of the wife of a Houston ex-bookie, and federal prosecutors want[ed] her notes.” She wouldn’t give them up, and the U.S. Court of Appeals for the Fifth Circuit upheld a contempt order jailing her. As I wrote then:
Either Leggett is not considered a reporter by Ashcroft because she works free-lance and has not published a story on the murder—as Leggett's attorney claims—or the Justice Department has changed its standard for jailing reporters. Either way, this is an unacceptable federal intrusion on a free press.
Eventually, the grand jury disbanded, Leggett went free, and when the jury reconvened her notes were not re-subpoenaed. The “real” journalists—notably, the Reporters Committee for the Freedom of the Press, as well as others—fought for Leggett’s case. Throughout the amicus brief filed at the Fifth Circuit, Leggett was clearly referred to by the Reporters Committee as a journalist and reporter deserving of First Amendment press coverage. The head of the Reporters Committee, Lucy Daglish, said of Leggett in a news release: “Had this journalist not sought help from journalism organizations prior to being sentenced for contempt, she would have been secretly jailed as well.”
Enter Paul Trummel.
According to an article posted last week at USC’s Online Journalism Review, Paul Trummel is “a pugnacious nursing home resident whose online rants landed him in jail.” A Washington state judge jailed Trummel, like Leggett before him, for contempt—in this case, however, it was because he wouldn’t stop talking. Trummel was, it appears, a kind of nursing-home watchdog. Among other things, he reported his findings on a Web site, which the judge ordered to have any identifying information of nursing-home employees removed. When Trummel kept the information up but simply switched to a server in the Netherlands, the judge had him jailed. The judge has since refocused his ruling as to Trummel’s status as a “recalcitrant stalker,” but the question remains for my purposes as to whether Trummel is a journalist.
What did Lucy Daglish, defender of Vanessa Leggett (who had never published a story and worked for no press organization), have to say about Trummel’s “journalist” status? He’s not, at least as to this case. Online journalism, she said, “lower[s] the barriers to entry, increasing the number of people who can do journalism.” Here is her standard for who is a journalist on the Web:
"If someone calls and says they work for a Web site, and it covers a variety of issues, and has good distribution and there is a broad base of people interested in what they have to say, and they take an independent view of the issues, then yes, I would consider that journalism and I probably could provide assistance for you," she said.
"But if you have a Web site that is targeted at a specific group of people and the sole purpose of the Web site is retribution against those people, I don't think that is journalism. It doesn't mean you're not a journalist. It means that that particular product you're working on is not journalism. In other words, I look at what your purpose is."
Distribution? Interest? Daglish is wrong to base journalist status on what is, essentially, a success factor. What she is saying is that because it’s so easy to become a reporter on the Web, we’re only going to allow in some of the Web reporters—the ones with the most hits and in which people are the most interested.
Independent view? I don’t see how this standard could be used—even in traditional media—for determining whether someone is a journalist. Does this mean the Internet journalist has to report something unique to be covered? If so, then only the first newspaper to get a story is worthy of journalist status—and that includes all those local papers reprinting AP and NYTimes’ stories. Does it mean the news has to come from an independent source? If so, convergence has all but eliminated independent viewpoints from traditional media.
Finally, Daglish’s “sole purpose of the Web site” comment shows her lack of understanding about the low “barriers to entry” on the Web. Let’s say your town’s water supply is being polluted by the major employer in the town (who, incidentally, is also the top ad revenue generator for the one newspaper in town). You are a chemical engineer who understands water pollution; you test the water and report the findings on a Web site, www.CompanyXPollutesOurWater.com. Under Daglish’s “sole purpose” test, you’re out of luck.
The Web does decrease barriers to becoming a journalist, and that’s a good thing. A part-time or occasional journalist is as much a journalist for purposes of the First Amendment as Linda Greenhouse or Chuck Lane. If Daglish wishes to limit the scope of her organization (for financial or feasibility reasons), that’s one thing. But for Daglish—as the representative of all reporters—to announce a restrictive standard for who should be given the status of “journalist” is unacceptable.
Why would Daglish, as a defender of the press, not want an expansive reading of who should fall under its press protections?