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Thursday, April 14, 2005

Is the First Amendment Being Hijacked by the Mainstream Media?

Intriquing title, right? It's the title on Chicago Tribune Public Editor Don Wycliff's column on journalists' image with the American public and the connection therein to the emerging debate on a proposed federal shield law introduced in the U.S. House of Representatives earlier this year by Rep. Mike Pence, R-IN, and a number of co-sponsors.

I was initially quite enthusiastic about the Pence proposal because it addresses a problem highlighted by the plight of two reporters facing jail time. This is simply because they refuse to reveal sources requested by Special Prosecutor Patrick Fitzgerald in the Valerie Plame case. It seems clear now that no crime was involved in that situation and the justification for the whole investigation has vanished. But the reporters still face the jail time because Fitzgerald wants to muck around in their contact files on other matters.

I believe strongly that journalists - who represent the people and enable much of the accountability that distinguishes democracy from every other form of government - should have a right to protect confidential sources except in those extraordinarily rare cases in which there is no doubt that either national security is at stake or a serious crime has been committed and the authorities have no reasonable alternative to solving it without recourse to knowing a source.

There are shield laws of varying depth and strength in 30 states, but none at the federal level, though, the U.S. Supreme Court has said journalists should have a qualified right to protect sources.

But I am beginning to wonder if the necessity of government defining who is and who's not a journalist is simply too fraught with risks to justify. Wycliff has made that argument in the past and now makes another good point:

"Sen. John Cornyn, R-TX, tells a revealing anecdote about a recent conversation with a colleague during a morning workout in the Senate gym. A campaigner for openness in government, Cornyn was trying to interest a fellow senator in legislation that he was sponsoring along with Sen. Patrick Leahy, D-VT.
"The colleague indicated his lack of interest by saying, according to Cornyn, 'That's just a press issue.' How do you spell kiss of death?"

Put another way, the arrogance and abuses of the franchise granted by the First Amendment to the MSM during the past several decades are catching up with journalists. We've become so unpopular that growing legions of people react with enthusiasm at the prospect of government imposing more restrictions on the media.

This is not simply a matter of blaming the victim for the crime. People within and without the MSM have been warning for years that this would happen if the bias, arrogance and elitism of so much coverage was not eliminated.

Tragically, too many in the MSM don't understand that they can be, they are being replaced by Internet-based media. People who read newspapers every day for years don't simply stop wanting news; they go elsewhere and find it when the paper no longer delivers the goods. Journalism goes on in America with or without The New York Times/The Washington Post/CBS News/etc./etc. as they have been known for so long. The news will be reported, just not by the MSM any more.

So not only does the MSM now face a lethal challenge from Internet-based media for its future audience and advertising revenue, it also must find a way to of winning back the trust of the American people and renew their understanding that it is their right to a free and independent press that is violated whenever government bureaucrats and elected officials thumb their noses at the public's right to know how its business is being conducted.

UPDATE: Chris Daly has a history lesson of relevance here, the major point of which is this:

"Common Sense and other pamphlets like it were precisely the kind of political journalism that Jefferson had in mind when he insisted on a constitutional amendment in 1790 to protect press freedom -- anonymous, highly opinionated writing from diverse, independent sources.
"In historical terms, today's bloggers are much closer in spirit to the Revolutionary-era pamphleteers than today's giant, conglomerate mainstream media. On those grounds, blogs deserve the full constitutional blessings that the First Amendment guarantees.
"But that is not to say that bloggers have carte blanche. It is important to remember that the First Amendment is a limit on the government's power to impose prior restraint -- that is, to prevent ideas from reaching the public by shutting down a newspaper before publication.
"It has always left journalists open to consequences that might arise after publication -- such as being sued for libel or being ordered by a judge to reveal a confidential source.
"It is clear that bloggers enjoy First Amendment rights, which are strongest at protecting opinions.
"It is less clear that they should be entitled to the protections of all the other laws that have been passed since the Founding that affect journalists.
"Consider, for example, the state and federal "shield laws," which in general allow journalists to protect confidential sources, as in the Apple case. Many bloggers say they should be covered by those laws.
"Here again, history offers a guide. Most laws protecting journalists are much newer than the First Amendment. They were passed in recent decades in order to protect and foster a specific activity called reporting.
"What we think of as reporting -- the pursuit, on a full-time basis, of verifiable facts and verbatim quotations -- was not a significant part of journalism in the time of Jefferson and Paine. In fact, the practice of reporting began around 1833 in New York's "penny papers" and gradually spread during the 19th Century."

Is there a significant distinction to be made between a "journalist" who conveys facts and opinions about those facts and a "reporter" who simply collects facts and the thoughts of others about those facts, all for consumption by the public or some portion thereof?

I don't think so, but what do you think?

BTW, Daly is a professor of journalism at Boston University. He is writing a book, "Covering America," on the history of U.S. journalism. He can be reached at: cdaly@bu.edu.