The emergence of citizen or grassroots journalism inevitably raises the question of whether bloggers, the operators of online news sites, or even freelancers should be considered journalists with the same legal rights as reporters who are employed by traditional news organizations. Some interpretations of the California shield law assert that they do, though so far this has been little help to the unnamed defendants sued by Apple Computer (Apple v. Does) in 2004 for leaking details about the company’s new products to online sites.

That the defendants should be treated as journalists resided at the heart of their case. As journalists, they sought the protection of both the First Amendment and California’s shield law. Santa Clara County Superior Court Judge James P. Kleinberg found such arguments unpersuasive and irrelevant. The case, he declared in deciding for Apple, was not about journalists and privilege; it was about trade secrets and “stolen property.”

In addressing whether the defendants were journalists, the judge said the question was beside the point: “The California legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else,” he wrote in his decision, which was handed down last March. Moreover, Kleinberg stated:

“Defining what is a ‘journalist’ has become more complicated as the variety of media has expanded. But even if the movants [defendants] are journalists, this is not the equivalent of a free pass.”

And, in reaffirming Apple’s right to protect trade secrets, Kleinberg went on to state:

“The Court sees no reason to abandon that right even if it were to assume, arguendo, movants are ‘journalists’ as they claim to be.”

The case is now under appeal, but the argument that the defendants are journalists entitled to special protection is far from resolved. An amicus brief filed in a state appellate court for the defendants states that to serve the important purposes of the First Amendment, this “newsgatherers’ privilege” should be interpreted to allow for a multitude of “vital sources of information.”

The brief, submitted on April 11th by Lauren Gelman, associate director of the Stanford Center for Internet and Society, declares that:

“The applicability of the newsgatherers’ privilege is determined not by the reporter’s formal status as a ‘professional journalist,’ but rather by the reporter’s functional conduct in gathering information with the purpose of disseminating widely to the public.”

The brief, in short, proposed a functional test for determining who is a journalist.

Pondering the Definition

As it happened, the decision in the Apple case in March also had started me thinking about a functional definition for journalists. I had a telephone conversation or two about it with my old Nieman classmate, Philip Meyer, the Knight Professor of Journalism at the University of North Carolina, and on April 7, 2005, I sent him a memorandum setting forth some ideas, which I discuss here.

The traditional definition of a journalist is based on employment or association. The California shield law, whose language is typical of such measures and that appears in Article 1, Section 2 (b) of the state constitution, says that: “A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body … 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.” The law also protects “a radio or television news reporter or other person connected with or employed by a radio or television station.”

It is noteworthy that in addition to the employment and association requirements the only words directed at actually doing journalism are concerned with refusing to disclose “unpublished information obtained in the reporting process” or “receiving or processing information to be communicated to the public.” The last—communication to the public—is relevant to a point I’ll make later about the functional requirement for an audience.

It had been thought or hoped by organizations such as California’s First Amendment Project that the law’s protection would apply to “stringers, freelancers and perhaps authors.” From there, it would only be a short step to include bloggers, operators of online sites, people who send their cell-phone photographs of newsworthy people or events to be published, broadcast or posted, and other distributors of information using new technology and software.

As I thought more about all of this, I came up with a list of elements of a functional approach to journalism and how they might work.

  1. It rejects both the employment/association-based definition of a journalist as well as the Cartesian definition: I think (or say) I am a journalist, therefore I am a journalist. It holds: I do journalism, therefore I am a journalist. The lonely pamphleteer, the blogger, the metropolitan daily reporter, the soap box orator in the park all enjoy the protection of the First Amendment, but only the first three are likely to be covered by a shield law that turns on function.
  2. It relies on tradition, common sense, and an appeal to “the reasonable person,” sometimes called the average person (or the average man) or an audience of reasonable people. The concept is widely used in law and moral philosophy. A recent Supreme Court decision in an employment case involving a 53-year-old female elevator operator held that to demonstrate a hostile working environment, a showing would have to be made that “the working conditions were so intolerable that a reasonable person would have felt compelled to resign.” (The emphasis is mine.) What is a reasonable person? Legal dictionaries suggest that he or she is appropriately informed, capable, aware of the law, and fair-minded. However extraordinary the circumstances, such a person will act and think in a way that is reasonable. And there are examples from moral philosophy. In Sissela Bok’s book “Lying,” she asserts that publicity is crucial to all moral choice. “The test of publicity asks which lies, if any, would survive the appeal for justification to reasonable persons,” she writes.
  3. It would clarify shield laws such as California’s, which extends protection “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.” Under the functional principle, the protected activity would have to have occurred while the employee of such an organization was doing journalism. That requirement, I suspect, is implied in the shield law, though it is not stated. But merely being employed by a news organization would not protect someone from the consequences of nonjournalistic activities.
  4. It would set forth some (though not all) definitions of what constitutes doing journalism. By the phrase “not all,” I have in mind activities that would pass the test of reasonable people on a case-by-case basis.

Qualifying for Protection

To qualify for protection, not all of the definitions need apply. But some might be sufficiently compelling in the absence of others. Here, then, are some examples of what might be considered doing journalism.

  • It means there is a story (or a series of stories/articles) that is being pursued. That is, the activity is aimed at producing a journalistic work product. Whether it’s a story would have to meet the test of the reasonable person. In most cases, I suspect, he or she would not have to think too hard about it. Whether the story is published or distributed is relevant but not controlling. Many journalists pursue stories that don’t pan out. Nonetheless they do legitimate journalism in the reporting.
  • It means that the work product or story is aimed at an audience. It must be intended to be read or seen or heard. The poet, the lonely pamphleteer or blogger (or New York Times reporter) writing only for personal satisfaction would not qualify for shield protection.
  • It means that there is a public benefit to the story or work product. The shield laws themselves exist because of the assumption that there is a public benefit to journalism and as a result society is justified in extending special protection to those who practice it.

I do not think, as a practical matter, that a public benefit would be hard to recognize or define were the question put to our reasonable people. In Roth v. United States, the Supreme Court held that one test for obscenity is that the material is “without redeeming social importance.” In other words, it is without public benefit.

The court also recognized in Roth that “ideas having even the slightest social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion”—have the full protection of the First Amendment. Under my proposed functional definition of journalism, the phrase slightest redeeming social importance would extend to the work of citizen or grass-roots journalists, as long as they were doing journalism.

At its core, the functional definition of journalism is much like the functional definition of a duck. If it looks like journalism, acts like journalism, and produces the work of journalism, then it’s journalism, and the people doing it are journalists. Whoever they are.

William F. Woo, a 1967 Nieman Fellow, directs the graduate journalism program at Stanford University. He formerly was editor of the St. Louis Post-Dispatch.

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