Previous Politech message: http://www.politechbot.com/p-02445.html ********** 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 In trying to get the order rescinded, Trummel has a pro bono attorney and an amicus brief by the ACLU.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 ********** 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 ********** 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 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 -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 7.0.3 for non-commercial use <http://www.pgp.com> iQA/AwUBO40PG2rvMjpl5yaUEQKE1gCgzTnJqTTqx9cf/jpx71opj4B/CDIAoPeJ iI5aJcRTKlpp3Yq6XHYGL9JY =LMTe -----END PGP SIGNATURE----- ********** 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 ********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. 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