Who, Exactly, Is a Journalist?
posted by Daniel Solove
Is Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read — and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.
According to the ABA Journal:
federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.
The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.
The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.
The court planned to issue a revised opinion this morning, the New York Sun reports.
Bashman told ABAJournal.com that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.
“In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal,” Bashman wrote in an e-mail.
Bashman’s account of the incident is posted on How Appealing.
Matthew Felling, writing at CBS’s website, examines Bashman’s claim to be a member of the media:
So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .
Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?
As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.
Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist — a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn’t determine who is a journalist and who is not. One doesn’t need to be part of any organization to report information to the public.
When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn’t define whether one is a journalist. Bashman is just as much a journalist even if he doesn’t get any money for his efforts — he’s still engaging in the same activity: bringing information to the public.
But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?
Here are some possible ways to draw the line and some of their pitfalls:
1. Perhaps the line should be drawn based on whether a blogger is engaging in original reporting as opposed to simply commenting on various news stories. This is a distinction that some in the mainstream media make — “We go to Iraq, we get the news from the place it’s happening. Some blogger then just links to our story and adds a few thoughts — it’s not the same.” True, it’s not the same, but both are still forms of journalism. The mainstream media is often filled with commentary, and opinion and news are often mixed together. The mainstream media loves to discuss other stories in the mainstream media. So if the New York Times or Washington Post or other elite media entity might not want to do original reporting on the salacious gossip about a celebrity, it can write a story: “So-and-so newspaper or blog or whatever says that Celebrity X did Y.” The news angle of these stories is that it is newsworthy that others are reporting about the scandal — even if the scandal itself alone somehow wouldn’t qualify. If this works for the MSM, then it should work for bloggers too.
2. Perhaps the line should be drawn based on one’s audience. If one has a small audience of just friends, then she’s not a journalist. But if one has a broader audience, then she is. But this line is nearly impossible to draw. Does a newspaper need to be read by many to be journalism? Many things are written for a niche audience. But if numbers don’t matter, then am I a journalist if I just tell one or two people some information?
3. Perhaps the line should be drawn based on the nature of the information one is spreading. If a person is speaking about personal information, she isn’t a journalist. If she is speaking about politics or culture, then she is. But the MSM reports on a litany of topics, often involving personal stories. Some of these stories may not be very newsworthy, but those who write them are still journalists and they are still at least attempting to engage in journalism.
I’m not so sure that the journalist / non-journalist distinction works. Everybody who expresses information to the public should be treated equally — being labeled a “journalist” shouldn’t carry any special privileges, especially since there seems to be no particularly good way to distinguish who is a journalist and who isn’t.
Howard Bashman has a constitutional right to post the judicial decision he posted — the Supreme Court held in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), that “[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.” Bashman enjoys this right regardless of whether he is paid by a mainstream media entity or doesn’t get a dime for his efforts. He has this right regardless of whether he blogs for 10,000 readers or just 2 people.
Is Howard Bashman a journalist? Should it matter? Perhaps that’s not a question we should even be asking.
October 20, 2007 at 10:47 am
Posted in: Blogging, First Amendment
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Responses (12)
Eric Goldman - October 20, 2007 at 11:33 am
If we were building the law from scratch today, there is no way we would try to “privilege” journalists from other types of content publishers and disseminators. That distinction is simply too incoherent in an era where everyone has equal access to an infinite audience.
The real silliness is over the idea that private information can be put back into bottle after it’s been released to the Internet, if only for a matter of minutes. The court screwed up by disclosing private information in a public opinion, and it will have to accept the consequences of its mistake. Eric.
Seth Finkelstein - October 20, 2007 at 6:01 pm
Eric, it’s a peeve of mine to see the utterly false claim of “everyone has equal access to an infinite audience”. No. Unless one is passed by the relevant gatekeepers, YOU *WON’T* GET HEARD! It’s cruel nonsense to say otherwise.
That being said, you’re right this is an easy case.
In general, the idea everyone’s-a-journalist is simply too facile, and that’s obvious. There probably won’t be a bright line, but we’ll end up with something like “journalistic purpose” as a similar sort of thing as “fair use”.
Michael Risch - October 20, 2007 at 6:28 pm
The O’Grady case in California discusses journalism as the “dissemination of news” - which seems to apply here.
http://cyberlaw.stanford.edu/attachments/H028579.PDF
garycarson@alumni.northwestern.edu - October 21, 2007 at 1:45 am
It just seems wrong to let the government decide who is or isn’t a journalist. If the government gets to decide who gets 1st amendment protections then there are no 1st amendment protections.
A journalist is whoever claims to be a journalist. How can that possibly be a bad thing?
Jens - October 21, 2007 at 10:14 am
Umm …
Who has deleted ?
Seth Finkelstein - October 21, 2007 at 11:33 am
Gary: The problem is that’s bit like saying “It just seems wrong to have let the government decide what’s “criticism, comment, news reporting, teaching, scholarship, or research,” (fair use). If the government gets to decide who gets fair use, then there’s no fair use”.
Taran Rampersad - October 21, 2007 at 12:56 pm
This, of course, is a discussion which can occupy lots and lots of time - and it is a worthy discussion.
The trick to all of this, I believe, is people learning how to write for an audience properly. Consider this:
“George W. Bush is a good president”
vs
“In my opinion, George W. Bush is a good president”.
The difference is one that is easy to see. Of course, this is an example and I won’t put my own opinion - but there has to be some accountability when someone is communicating; if I say:
“Bob stole the car”
vs.
“Bob allegedly stole the car”
vs.
“I saw Bob steal the car”
Things are read quite differently based on how well established the person writing is. This goes back to reputation in a different way, etc.
Seems like fodder for a post, actually. Not that I don’t have enough to write about…
AF - October 22, 2007 at 10:50 am
Everybody who expresses information to the public should be treated equally — being labeled a “journalist” shouldn’t carry any special privileges, especially since there seems to be no particularly good way to distinguish who is a journalist and who isn’t.
Being labeled a “journalist” shouldn’t carry special privileges — unless giving journalists privileges aids the public flow of information. Media shield laws are a key example. Shielding “everyone who expresses information to the public” is a recipe for abuse — people would set up blogs for the purpose of shielding information. But no shield law at all would allow parties or the government to routinely subpoena journalists in any case related to an article they wrote — conscripting journalists as police and unpaid private investigators against their will and providing a significant disincentive to reporting. The best solution seems to be to offer a shield, but only to “journalists,” however imperfectly defined.
Ramiro - October 22, 2007 at 11:51 am
Yes. Being a journalist shouldn’t matter, is speech what’s important. Defining what a journalist is is almost impossible, isn’t it? Plus, if we want to do that, we shoul define what journalism is. Is a broadcast / delivery of a messege to a silent reciever? Or is it something else? Isn’t journalism a conversation? Isn’t comments to public interest news made by bloggers precisely the kind of speec the FA wanted to protect in the first place?
Mr. ethics - October 22, 2007 at 2:03 pm
But what about Howard’s ethical duties to the court?? Sure, he might hold himself out to be a journalist, but he’s also a lawyer and thus bound by the ethical constraints of our profession. Just because he can do something as a “journalist” doesn’t mean he can do it as an attorney.
Please explore on a separate post. Very interesting topic.
Craig Martelle - October 22, 2007 at 3:59 pm
Protection of bloggers as journalists is supported by appropriate case law. I would refer you to the following research article on the topic - Constitutionally Protected Blogging.
http://gauntletinternational.com/ConstitutionallyProtectedBlogging.pdf
Alitta - December 27, 2007 at 4:34 am
It’s not difficult to be a journalist but being a good one is not that easy
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