FC: Replies to "When anyone can publish, who's a journalist now?"

From: Declan McCullagh (declanat_private)
Date: Thu Sep 06 2001 - 17:03:17 PDT

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    Date: Thu, 6 Sep 2001 13:09:38 -0400
    From: Vicki Richman <vicricat_private>
    To: Declan McCullagh <declanat_private>
    Subject: Trummel v. Mitchell: 1st Amendment Issue
    Organization: National Writers Union, UAW Local 1981
    
    Declan, this is not an electronic issue, but Trummel
    v. Mitchell, in Washington State, goes to the heart of a
    question raised on politech: Who is a "legitimate"
    journalist?
    
    See:
    
    http://www.contracabal.org/806-00.html
    
    Briefly, Paul Trummel, a retired journalist from Britain,
    with impeccable credentials, discovered what he believed to
    be fraud and abuse in the management of his moderate-income
    retirement home. He published leaflets and distributed them
    to his neighbors.
    
    The management got an order of protection against him,
    effectively banning him from his home and preventing him
    from approaching his neighbors. He argued freedom of the
    press, but the judge ruled that he was not a journalist, as
    he was retired and not employed by any "legitimate"
    publication.
    
    Therefore, the judge held, he lacked protection of the First
    Amendment and was guilty of harassment.
    
    In trying to get the order rescinded, Trummel has a pro bono
    attorney and an amicus brief by the ACLU. He'd like
    political civil-libertarian support, as well as financial
    contributions for his attorney.
    
    Solidarity,
    -- 
    Vicki Richman
    vicricat_private
    http://vicric.com
    
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    From: "Anuj Desai" <acdesaiat_private>
    To: <declanat_private>
    Subject: Re: When anyone can publish, who's a journalist now?
    Date: Wed, 29 Aug 2001 16:44:07 -0500
    
    Declan,
    
    Your readers might be interested in knowing that many courts have been
    forced to deal with the question, "Who is a journalist?" over the years in
    circumstances similar to what appear to be Ms. Leggett's.  Several states
    have laws, known as shield-laws, that specifically protect journalists from
    testifying in certain circumstances, and those laws often contain
    definitions of "journalist" or "reporter" or "media".  In addition, the
    First
    Amendment provides a separate protection.
    
    In the statutory context, the courts are of course bound by the legislative
    definitions of who is a journalist.  These definitions vary from state to
    state, but in most states depend upon some sort of professional affiliation.
    
    Under the First Amendment, however, courts have been much broader, focusing
    primarily on whether the person claiming the journalist's privilege had an
    intent to disseminate the information to the public **at the time s/he
    gathered it**.  Bearing in mind the Supreme Court's admonition that "Freedom
    of the press is a 'fundamental personal right' which is not confined to
    newspapers and periodicals.  It necessarily embraces pamphlets and leaflets.
    ...  The press in its historic connotation comprehends every sort of
    publication which affords a vehicle of information and opinion,'"  Branzburg
    v. Hayes, 408 U.S. 665, 704 (1972) (quoting Lovell v. City of Griffin, 303
    U.S. 444, 450, 452 (1938)), courts have been unwilling to restrict press
    rights to the institutional press.  Although the Supreme Court has never
    directly addressed the question, "Who is a journalist?" in the context of
    the journalist's privilege (indeed, the fear that courts would have to deal
    with it was part of the majority's rationale for *not* granting the
    privilege in the seminal Branzburg case), many federal courts have addressed
    it, with
    varying results depending on the circumstances.  See, e.g., In re Madden,
    151 F.3d 125 (3d Cir. 1998); Schoen v. Schoen, 5 F.3d 1289, 1293-94 (9th
    Cir. 1993); Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir.), cert. denied,
    481 U.S. 1015 (1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.
    1977); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993); Apicella v. McNeil
    Labs., Inc., 66 F.R.D. 78, 84-85 (E.D.N.Y. 1975).
    
    This is not to say that answering the question is simple in any give
    circumstance, but simply to note that courts have been doing it for a long
    time.
    
    One other point that should be clarified in light of this post is that, in
    every jurisdiction, the journalist's privilege is a *qualified* privilege
    and yields to the needs of evidence-gathering in many cases.  No one, not
    even a New York Times reporter [I use the NYT rather than Wired because we
    know that some would question your own status as a journalist :-) ], gets
    the
    privilege in every circumstance.  The person attempting to force a
    journalist to testify in the face of the privilege simply has to show that
    1) the information they seek is relevant to the lawsuit for which they are
    seeking it; 2) their suit is not frivolous; and 3) they have exhausted all
    other reasonable means of obtaining the information (or some other similar
    variation of this three-part test).  So, even having a broad definition of
    "journalist" does not completely open the door to an unfettered right to
    refuse to testify.
    
    -Anuj
    
    Anuj C. Desai
    University of Wisconsin Law School
    975 Bascom Mall
    Madison, WI 53706
    acdesaiat_private
    
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    Date: Wed, 29 Aug 2001 14:49:00 -0700
    From: Michael Maynard <mmaynardat_private>
    To: declanat_private
    Subject: Re: FC: When anyone can publish, who's a journalist now?
    
    In response to Mr. Geer, first of all, he does a cute debating trick
    of confusing terms. The original question was "who is a writer?" which
    he changed to "who is a journalist?. There is a big difference. Anyone
    can write, but not everyone can be a journalist.
    
    There are rules and ethics associated with being a journalist, such as
    verifying facts, using direct quotes only when directly attributible from
    the source, and requiring at least two sources when verifying information
    provided from an unknown or questionable oringinal source.
    
    These rules and ethics have certainly been diminshed in recent years
    through the works of self-styled "journalists", like Matt Drudge. However,
    true journalism, passed down to us from our precedessors, such as H.L. Mencken,
    is a very honorable and necessary profession. Right now, the world needs more
    true journalists and less journlistic poseurs who have tried to confuse
    tabloid-level
    sensationalism to be real journalism.
    
    So, Mr. Geer, your press pass is definitely denied.
    
    **********
    
    From: "Matthew Pemble" <mpembleat_private>
    To: <declanat_private>, <geerat_private>
    Cc: <politechat_private>
    Subject: RE: When anyone can publish, who's a journalist now?
    Date: Wed, 29 Aug 2001 16:50:04 +0100
    
    
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    What about (fully recognised and published) part-time journalists?  I
    have a monthly column in a trade magazine.  It takes up about 2% of my
    working time.  What protection should that material have and,
    considering that they are compiled using the same systems, how does
    that affect the 98% of my work which is as a security consultant?
    
    Actually, as I am a Brit, there is no protection at all but consider
    the hypothetical case.
    
    - - --
    
    Matthew Pemble
    
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    From: terry.sat_private
    To: declanat_private
    Date: Wed, 29 Aug 2001 21:16:17 -0400
    Subject: Re: FC: When anyone can publish, who's a journalist now?
    
    Hi Declan!
    
    On Wed, 29 Aug 2001 11:01:30 -0400 Declan McCullagh <declanat_private>
    writes:
    
     > Now the thought experiment is this:  If the Profession of Jornalists
     > (PoJ) chooses to defend the proposition that anyone who wants to be
     > one automatically is one, then whether I am today a journalist or not
    is
     > a role decision that presumably I get to make, both to adopt the role
     > and to rescind the role, according to my whim.  As the role has and
     > claims substantial privileges, what bargain would the PoJ offer to
    society
     > at large to justify, whether politically or morally or economically,
     > the extension to the many what had heretofore been special privileges
     > afforded to the PoJ few?  In other words, if the right claimed is to
     > not tell law enforcement what one knows today in exchange for the
     > promise to eventually tell the entire public that part of it that  can
     > be woven into a readable narrative, then the terms of the bargain
     > are at least clear.
    
    This sounds very much like an issue of who is clergy, protected by
    privilege of extending confidence and being exempt from compelled
    testimony.  Unlike for physicians, and subject to many quirks lawyers,
    there can be no legitimate form of professional licensing for clergy, and
    likewise for journalists.  In some religions there is a hierarchical
    structure of central authority which defines clergy and issues judicially
    reviewable credentials, or not (just as for press).  In others, everyone
    is considered clergy, with only a distinction of who also obtains
    credentials from an IRS (of all agencies) sanctified supposed authority,
    or who functions as such in a professional as opposed to other role.
    More ethical states wrestle with legal ambiguity defining clergy, while
    other states try to pretend no one is clergy unless individuals license
    their religious rights with those problem states.
    
    The suggestion that a church with lay deacons acting as clergy cannot
    extend clerical legal status to other than professional employee clergy
    has been litigated, with findings that law cannot legally make such
    distinctions Constitutionally.  The issues of a religion where many
    practitioners do not associate with an IRS approved corporate church,
    while most practitioners are acting as clergy to self if not also others,
    have not yet been resolved such that our legal system deals with current
    reality of legal fact.
    
    Journalistic privilege of confidence is very similar to that for clergy,
    with one set of issues that differ.  Due to traditions of clerical
    counseling, clergy in many states are exempt from medical licensing laws
    regarding practice of Psychology.  In turn, law in some states subjects
    clergy to compelled reporting of verified or suspected child and/or
    elderly abuse, as it does for doctors, teachers, social workers, etc.
    Clergy can also generally be sued for malpractice in such counseling if
    offered to others.
    
    The same issue exists with clergy as journalists of a supposed public
    service embedded in the profession as the historic rationalization for
    special legal status.  At the time the Bill of Rights was adopted, most
    states either still were or had recently been theocracies, and retained
    traits of such church control of state.  Some of those survive today
    despite the 14th Amendment making that illegal as of 1868.  Splinter
    religion clergy not associated with large corporate churches presumed to
    somehow offer quasi-theocratic government public services may parallel
    the direction the specialty press has gone.  Are the millions of minor
    variants of thousands of documented religions now present in the USA akin
    to the nature of press to now narrowcast to special interest groups,
    rather than mostly be a key element of linking government to the populace
    broadly?
    
    In either case it's easy to argue that neither clergy or press are
    universally today serving their historic traditional roles in society.
    It's equally easy to argue they deserve the same Constitutional
    protections long standing, as the roles under which press or clergy
    exist, whether serving narrow or broad audiences in particular cases, are
    adapted to the exponentially increased diversity of today's populace.
    
    Terry
    
    **********
    
    
    
    
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