Congress shall make no law ...
defining who is a journalist
By Kathy Sheehan
School of Communications
University of Washington
2100 Niagara Drive
Bellingham, WA 98226
Home: (360) 647-5106
E-mail: [log in to unmask]
Submitted to the Law Division
1999 AEJMC National Convention
Congress shall make no law ...
defining who is a journalist
Despite the First Amendment, American courts have made case law numerous times
defining who qualifies for legal protection as a journalist and who does not.
With the explosion of Internet publishing in the 1990s, anyone with a computer
and a modem can be a journalist. This paper examines cases, especially with
state shield laws, where courts have created definitions for journalists. It
also discusses how such definitions might be applied on the Internet and what
problems could develop there.
Congress shall make no law ...
defining who is a journalist
Despite the First Amendment's clear provision against laws abridging the freedom
of speech and of the press, American courts have nonetheless been asked numerous
times to decide who qualifies for protection as a journalist under the First
Amendment and who does not.
Licensing of journalists has been opposed since at least the time of John
Milton's treatise, Aeropagitica (Appeal for the Liberty of Unlicensed Printing).
Some would argue that elimination of the press licensing system was the leading
purpose for adoption of the First Amendment. Yet courts presiding over a variety
of claims involving the press have had to first decide, or certify, that the
individual or individuals involved were legitimate, professional journalists.
Even as recently as 1996, the U.S. Congress defined the role of Internet
publisher in its Communications Decency Act.
Hundreds of laws and rulings on journalist identity have materialized over the
last 200 years and are problematic for the First Amendment. The number of cases
where journalists need to be identified (or legitimized) can only increase as
major changes sweep the news industry, especially with the Internet. The way the
news is delivered to the masses today has been significantly modified, and the
very definition of journalism and of who is a journalist is metamorphosing.
Consequently, questions about who is a journalist are multiplying. And with
these questions/arguments come new government rules and court decisions. Anyone
with a fax machine, telephone, computer and/or a modem can call himself or
herself a journalist or publisher and ask for protection under the First
There is no shortage of definitions for journalism and journalists. Descriptions
and definitions are frequently discussed in the literature and in trade
magazines, and they can be found in press cases involving libel and obscenity,
prior restraint, press credentialling and, especially, the journalist's
privilege. In addition, federal prosecutors are directed by the Rules of
Evidence (CFR 28) to treat journalists differently from other witnesses.
A few examples:
In Pittsburgh, a U.S. District Court judge in April 1997 allowed Mark Madden, a
wrestling commentator for a 1-900-number hotline, to call himself a
newsgatherer, and thus, shield his confidential sources in a libel suit (Titan
v. TBS, 1997). An appeals court panel in the Third Circuit, however, overturned
the ruling 15 months later (In Re: Mark Madden). "By his own admission," the
court ruled, Mark Madden "is an entertainer, not a reporter, disseminating hype,
In Florida, a 1998 state shield law created a qualified privilege to protect
journalists from forced disclosure of information gathered while working for a
newspaper, wire service, news magazine or broadcast station (Media Law Reporter,
1998). But it specifically excluded book authors. In the nearby state of
Louisiana in 1994, however, investigative author Joseph Bosco was allowed to
assert a qualified journalist's privilege under the First Amendment in a murder
case in which he was subpoenaed to testify (The News Media AND THE LAW, Spring
1994). In neighboring Georgia, too, book authors qualify as journalists and may
assert a qualified privilege under that state's "shield" law, which permits
journalists not to testify about confidential sources (Reporters Committee for
Freedom of the Press, 1998).
In a Washington state case involving an Internet site critical of a credit
reporting agency, U.S. District Court Judge William Dwyer refused to issue a
preliminary injunction to tone down the alleged defamation on the
billsheehan.com web site (Sheehan v. King County, 1998). Dwyer argued that such
an order would amount to prior restraint on free speech. Although Bill Sheehan
has no journalism credentials, Dwyer called Internet publishers like him just
modern versions of the pamphleteers who distributed news and information 200
years ago. Thus, Dwyer said, news and opinion on the Internet is protected by
the First Amendment.
In "It's a Job, But Is It Journalism?" (Columbia Journalism Review, 1996), a
1996 issue of the Columbia Journalism Review focused on the question of who is a
journalist in cyberspace. "Can 'Content-Providers' Be Investigative
Journalists?" a second CJR story about the new media inquired.
When major news organizations began to pay front-page attention to Hustler
magazine publisher Larry Flynt and former Hollywood gift shop clerk Matt Drudge,
veteran media watcher Alicia Shepard wondered if Flynt and Drudge had become
"America's assignment editors" (Shepard, 1999). "With the advent of the
Internet, 24-hour cable television news, talk radio and a general coarsening of
the popular culture, the notion of the [traditional] press as gatekeeper seems a
quaint relic," Shepard said. Flynt, who violated a major journalistic tenet by
paying for information about Republican legislators in Washington, and others
like Drudge actually do become professional journalists - at least in the eyes
of the public.
As a result of these and other cases, our concepts about the press and about
freedom of speech are being stretched today to encompass literally "every sort
of publication which affords a vehicle of information and opinion" (Lovell v.
Griffin, 1937) and to encompass both professional and amateur journalists.
A number of courts and government agencies are now being asked to extend
journalistic liberties to new publishing and electronic broadcasting
"institutions." From The New York Times on the Web to Matt Drudge's online
gossip column, from Bill Sheehan's rant against Experian Information Solutions
Inc., to a socialite hoping to become a book author, both individual writers and
the traditional press claim they are gathering, selecting, processing and
distributing news and information. Even Mark Madden (Titan v. TBS, 1997), whose
admittedly fictional hype is read over a telephone line, was granted a
journalist's "privilege" to shield his confidential sources, albeit for a
limited time. (The case (In Re: Mark Madden) is being appealed.)
Journalists and the institution of journalism have played important roles in the
realization of and strengthening of the American democracy. As accurate and
reliable messengers, neutral observers, the public's watchdog over government
and as professional information filterers and gatekeepers, members of the Fourth
Estate serve a vital role in our society (Ognianova, 1998). And because of that
role, American laws and legal precedents, especially since about the 1970s, have
made a distinction between the institutionalized press and those who merely
claim to gather, synthesize and distribute information to the public (Pember,
1998). As former Chief Justice Warren Burger argued in 1978, the First Amendment
does not "belong" to any definable category of persons or entities. "It belongs
to all who exercise its freedoms," he wrote in First National Bank of Boston v.
Bellotti [435 U.S. 765, (1978)]
With the advent of desk-top publishing and the explosion of Internet publishing
in the 1990s, it has become quite possible and simple for the Matt Drudges and
Mark Maddens of the world to play the same role professional journalists play
and to seek protection under the First Amendment. No longer does "the giant size
of the institutions of mass media simply overwhelm the communication efforts of
the amateur journalist" (Pember, 1998).
As the traditional boundaries of journalism and journalistic roles are blurred
and sometimes bypassed on the Internet, and with the Fourth Estate in danger of
losing its standing as the public's key gatekeeper, the question of journalistic
identity takes on greater importance than ever before.
This paper will examine several instances where courts and government agencies
struggle to define who is a journalist and who is not. It will also discuss how
such definitions might be applied in the new media environment; what problems
could develop there; and why a governmental definition of the news media could
pose problems for the First Amendment.
Part I will examine cases where courts have defined who a journalist is. These
cases involve libel, prior restraint, press passes and especially the
journalist's privilege. Part II will take the basic decision framework the
courts have used in journalist's privilege cases to see how the legal criteria
might be applied in the new media environment.
Part I: Libel, Prior Restraint, Press Passes and Journalist's Privilege
In early 1995, Matt Drudge gave up working in a Hollywood gift shop and
proclaimed himself a gossip columnist/journalist when he began publishing his
Drudge Report on the Internet. Within a few months, he had 1,000 readers who
received his gossip report by e-mail. Within two years, when the Drudge Report
had become so popular that he had some 85,000 e-mail subscribers, American
Online contracted with Drudge for $3,000 a month to post his gossip column to
AOL subscribers (Blumenthal v. Drudge, 1998).
Gossip items in the Drudge Report are unlike gossip items in mainstream
newspapers. Where professional journalists must confirm their information with
at least two independent, reliable sources, Drudge, like many other
self-described "journalists" on the Internet, may report information from tips
whether the information is fact or not (Grossman, 1998). And so it was that
Drudge on Aug. 10, 1997 e-mailed subscribers and posted to his Internet site and
AOL's a story that claimed White House aide Sidney Blumenthal abused his wife.
Although Drudge later retracted the charge and apologized, Sidney and Jacqueline
Blumenthal are suing Drudge and AOL for defamation.
AOL, which had published the information on its Internet site, was quickly
dropped from the suit, however. A section of the Communications Decency Act,
passed a year earlier, immunized online service providers like AOL from libel in
cases where the information disseminated had been created by others. Section 230
of the CDA says that providers and users of interactive computer services are
not to be treated as publishers or speakers in matters involving any information
"provided by another information content provider."
The law says that online service providers, in effect, are distributors rather
than publishers and, thus, do not bear civil liability for the content of the
The U.S. District Court in Blumenthal v. Drudge reasoned that it might seem
logical to hold AOL to the liability standards of a publisher, especially since
AOL has the right to exercise editorial control over Drudge's reports. "But
Congress has made a different policy choice," the court ruled, "by providing
immunity even where the interactive service provider has an active, even
aggressive role in making available content prepared by others." Congress put
the TeflonR on Internet service providers in order to keep the flow of
information in our society free and unfettered, the court said, and to keep
claims of First Amendment infringement to a minimum.
The court also cited a 1997 Massachusetts decision, Digital Equipment Corp. v.
Altavista Technology, Inc. (960 F. Supp. 456), that stated that the Internet was
"fundamentally different from traditional forms of mass communication." Among
the reasons for the difference, the Massachusetts court said, is that the
Internet has no "gatekeepers," or journalists. There are "no publishers or
editors controlling the distribution of information," on the Internet, the court
The Communications Decency Act and the Drudge decision have the effect of saying
that there are no journalists on the Internet, that there is a new standard by
which "publishers," "distributors," "journalists" and "content providers" are
defined, at least in cyberspace.
The court opinions may have wide-ranging ramifications for the evolving law on
the Internet. If there are no publishers and journalists online, the court
rulings raise questions about who can be a publisher, distributor, journalist or
content provider online, particularly since the new law immunizes from torts
both providers and users of interactive computer services.
If AOL is not a publisher, and, in fact, there are no publishers in cyberspace,
then who is the press online? Can any newspaper company subsidiary that has an
online edition also claim immunity from civil torts? If Drudge had his own
server and/or if he received his bad tip about Blumenthal from "another
information content provider," can he claim to be an online service provider as
well as a journalist?
Then who exactly is the First Amendment protecting on the Internet?
If Congress is defining who is not a publisher, how long will it be before the
Congress or the courts make law for who is a publisher?
In another Internet case in 1998, U.S. District Court Judge William Dwyer
compared a Mill Creek, Wash., man's web site to the distribution of fiery
leaflets, or single-issue newspapers. (Sheehan v. King County, 1998) Dwyer said
the Internet was "an arena of free speech," and restraints upon publishing
information and opinion there are "presumed to be unconstitutional."
William Sheehan III's web site (http://www.billsheehan.com) contains possibly
false and probably overblown "verbal pyrotechnics" against Experian Information
Solutions, Inc., a credit reporting agency with whom he is at war, Dwyer said in
his July 17, 1998 ruling. For instance, Sheehan called Experian officials
"criminally insane." But Sheehan's published opinion was nonetheless protected
speech. Dwyer lifted a temporary restraining order he had issued June 10, with a
reminder that the First Amendment protects both "the speech we deplore as
thoroughly as the speech we admire."
Are student publications and so-called alternative papers legitimate journalism,
protected by the First Amendment? That's not clear in cases involving censorship
and press credentialling. A Supreme Court decision, Hazelwood School District v.
Kuhlmeier (1988), and a U.S. District Court decision in Kentucky in 1997 seem to
indicate that student journalists don't have equal rights with their
"professional" brethren when it comes to censorship. And in cases involving the
issuance of press passes, courts have issued contradictory rulings.
A California Appeals Court ruled in 1970 that the Los Angeles Free Press, an
underground weekly with a circulation of more than 85,000, was not eligible for
a police press pass (Los Angeles Free Press v. City of Los Angeles, 1970). The
pass is a license of sorts to cover police and firefighter activities and to
receive cooperation from police and fire authorities. The paper contained what
officials described as "sociological" journalism. The paper covered riots,
demonstrations, assassinations and news conferences. And that didn't fit the
police department's criteria for press pass eligibility: The paper had to
regularly gather and distribute "hard core news generated through police and
fireman activities" in order to earn its press "license."
A year later, however, an Iowa District Court said police could not discriminate
against an underground newspaper by denying police department records if those
records were available to other types of media. (Quad City Community News
Service, Inc. v. Jebens, 1971). The Challenge had incorporated as a business but
had only $10 in assets and no physical facilities of its own.
Most of the decisions involving who can qualify as a journalist are found in the
area of a reporter's "privilege." The government has frequently been asked to
decide not only who is a journalist but when and where and under what conditions
before a reporter is granted the "privilege" of shielding the identity of
The idea that journalists needed this special privilege in order to ensure the
free flow of information in the democracy stretches back to 1848 when a
Washington correspondent was jailed for refusing to tell the U.S. Senate his
source for a story about a proposed treaty between the United States and Mexico
(Gordon, 1974, Francois, 1982, and Pember, 1999). In 1896, Maryland became the
first state to adopt a law giving journalists the legal right to maintain
confidential news sources after a Baltimore Sun police reporter spent two days
in jail for refusing to tell a grand jury the source of a news report (Alexander
and Cooper, 1997). Seven more states enacted shield laws in the 1930s, and the
constitutional claim of protection under the First Amendment has grown steadily
In 1972, in the only journalist's privilege case it has taken, the Supreme Court
decided in Branzburg v. Hayes that journalists did not have an absolute
constitutional privilege to refuse to testify before a grand jury. Branzburg
represented three cases consolidated before the high court, and it centered
around journalists who claimed that the state shield laws in Kentucky,
California and Massachusetts allowed them to refuse subpoenas from grand juries
investigating illegal activity. The journalists claimed that requiring
newsgatherers to appear before a state or federal grand jury was an abridgement
of the freedom of the press guaranteed by the First Amendment. They and others
who have pushed for the "privilege" have argued that protection of the identity
of confidential sources is essential to the press' informative function in our
political system. Individuals with important information to contribute to the
democracy and to the "marketplace of ideas," it has been argued, might otherwise
In its 5-to-4 decision ordering the reporters to testify before the grand
juries, several justices agreed, however, that a qualified privilege might exist
in other cases. They said a balancing test was needed in non-grand jury cases
where a reporter's "privilege" and the First Amendment might outweigh another's
interest in the Sixth or Fourteenth Amendments.
When the Supreme Court ruled in Branzburg, 17 states already had shield laws
(Gordon, 1974), all based on the belief that the free flow of information would
be hampered if journalists could not guarantee confidentiality to news sources.
Shield law proponents say people with important information would not come
forward otherwise, and society would not be served. The laws were adopted to
recognize the public's interest in protecting the integrity of the newsgathering
process while balancing another important right, the right to a fair trial.
No federal "shield" law was in place then. And in Branzburg, Justice Byron
White, who wrote for the majority, refused to consider a federal "shield" law to
protect, or shield, journalists from revealing the identity of confidential
informants and confidential documents. While the Supreme Court did not
invalidate state shield laws, White cast state shield laws as a dangerous arena
where the government could be seen as "certifying" or licensing journalists, a
process offensive to the First Amendment.
"The administration of a constitutional newsman's privilege would present
practical and conceptual difficulties of a high order. Sooner or later, it would
be necessary to define those categories of newsmen who qualified for the
privilege, a questionable procedure in light of the traditional doctrine that
liberty of the press is the right of the lonely pamphleteer who uses carbon
paper or a mimeograph just as much as of the large metropolitan publisher who
utilizes the latest photocomposition methods."
Citing the 1937 Lovell v. Griffin case in which a city law requiring a license
for distribution of any kind of literature was declared unconstitutional, White
noted that the press has been historically defined as "every sort of publication
which affords a vehicle of information and opinion." That could include
representatives of the organized, institutionalized press as well as lecturers,
political pollsters, novelists, academic researchers and dramatists, he warned.
Any of those authors and speakers could "quite accurately assert that he is
contributing to the flow of information to the public, that he relies on
confidential sources of information, and that these sources will be silenced if
he is forced to make disclosures before a grand jury," White wrote.
Despite Justice White's warning about the difficulties inherent in granting
special privileges to people called journalists, 30 states and Washington, D.C.,
have state shield laws today that define news gatherers almost 31 different ways
(Reporters Committee, 1998). And numerous court cases involving state statutes
and a "common-law" privilege are further defining who is a journalist.
The states that currently have shield laws are: Alabama, Alaska, Arizona,
Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana,
Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada,
New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina and Tennessee (Reporters Committee,
Those state laws describe journalists as people who gather and disseminate
information. Depending on the state, they are either employed by, connected with
or engaged in work for specified media organizations. They may work for
newspapers, magazines or TV stations, be affiliated with press associations or
news agencies or be under contract to write a book or to shoot a motion picture
Their product may be a daily or weekly newspaper with a paid circulation (New
Jersey, 1996). Or it may be "any ... electronically recorded news or other
data," under Oregon state law (Oregon, 1995); "any ... electronic means of
disseminating information to the public" (Washington, D.C.); or any "other
medium" (South Carolina, 1997).
To illustrate how the laws vary from state, consider the plight of a book author
in Georgia, Delaware or Florida. The Georgia shield law specifically protects
book authors. The shield law in Delaware seems to also, but the language is not
specific. It covers "any journalist, scholar, educator, polemicist or other
individual" who works at least 20 hours a week or "otherwise" makes a living
gathering or disseminating information to the public. The journalist's work can
be aided by "facilities for the mass production of words, sounds or images," the
Delaware law states.
But other states, such as Florida, exclude book authors. Florida's code covers
only "professional" journalists who regularly engage in newsgathering for one of
nine types of media. "Books" are not in the list of media types.
If that isn't enough government regulation to determine special privileges for
journalists, the Code of Federal Regulations directs prosecutors to negotiate in
all media cases before issuing subpoenas for journalists' testimony (CFR Title
28, 50.10). "All reasonable attempts should be made to obtain information from
alternative sources," it says.
In the end, interpretation of the 31 shield laws are left to state and appeals
courts who have read the language in them in a variety of different ways. They
have said that who is a journalist depends on the answers to six questions.
1. Was the reporter wearing a "press hat" at the time?
2. How important is confidentiality to the writer's work and his or her
3. Is the author investigating information for the public?
4. Did the writer have an intent to publish information for the public at the
inception of the newsgathering?
5. Does the content go to the heart of the "journalism," or is the claim based
on the format of the medium or the job title of the requesting party?
6. Is the news or information factual?
Question 1: Was the reporter wearing a "press hat" at the time?
More than 15 years ago, a Baltimore Evening Sun reporter, David Lightman,
asserted his privilege not to reveal to authorities the name of a "head shop" in
Ocean City, Md., or the identity of the shop clerk who offered him a marijuana
cigarette (Lightman v. State, 1973). An appeals court in the 2nd Circuit held in
1973 that Lightman could not shield his sources despite the state's shield law.
Lightman had not informed his "source" that he was a reporter when he wandered
into the shop, the court ruled, and his personal observation of the alleged
illegal action, though described in a news story, was in his role as a customer,
not as a journalist.
Lightman was a legitimate journalist, but he was not wearing his "press hat"
during his conversation with the shop clerk because he had not informed his
"source" that he was a reporter, the court said.
Question 2: How important is confidentiality to the writer's work and his or her
In New York v. LeGrand, the New York Supreme Court ruled in 1979 that Lee Hays,
a book author, magazine writer and former network news journalist, was not
protected by the state's shield law in his refusal of a discovery order in a
murder case. The court narrowly interpreted the definitions of "professional
journalist" and of the various forms of news media in the state law and
determined Hays and his contract with a book publisher were not covered.
The court also took note that Hays had not promised confidentiality to his
source, an important distinction in determining who is a journalist covered by
the shield law and who is not.
Hays was writing a book about the alleged LeGrand crime family in New York. A
family member on trial for second-degree murder wanted Hays' notes from an
interview with a prosecution witness. Hays claimed he conducted the interview
with the understanding that the information would not be revealed before
publication of his book. The information was not confidential, though, the court
noted. In fact, the prosecution witness Hays had interviewed had already
testified before several grand juries investigating the LeGrand family's
involvement in several murders. Hays' agreement with his source was "at best, an
agreement to postpone divulgence of the information until the book was
published," the court said.
The court went further in delineating who is a journalist, articulating the
difference between Hays and a typical journalist. The court said Hays' interest
in protecting the source of his information "is manifestly less compelling than
that of a journalist or newsman." Book authors, unlike journalists, do not need
to cultivate confidential sources of information to ensure the free-flow of
information so important in a democratic society, the court noted.
"To report the news and remain valuable to their employer and the public,
professional journalists must constantly cultivate sources of information.
Newsmen must also maintain their credibility and trustworthiness as repositories
of confidential information. However, [Hays], like most authors, is an
independent contractor whose success invariably depends more on the researching
of public and private documents, other treatises, and background interviews,
rather than on confidential rapport with his sources of information."
Question 3: Is the author investigating information for the public?
Arthur Buzz Hirsch, a former journalist who was studying film at the University
of California at Los Angeles, was subpoenaed in a civil case filed by the family
of Karen Silkwood (Silkwood v. Kerr-McGee Corp., 1977). The Silkwood family
accused Kerr-McGee Corp. of contaminating Silkwood with toxic plutonium
radiation in a conspiracy to prevent her from organizing a union and filing
complaints. Hirsch was conducting a factual investigation into Silkwood's
mysterious death for a documentary film.
Although the Oklahoma Shield Law covers only people who "regularly" engage in
obtaining, writing, reviewing, editing or otherwise preparing news, the 10th
Circuit Court of Appeals decided to extend that coverage to Hirsch in 1977. Why?
He was on an investigative reporting "mission" that would result in a
documentary film for the public.
"The Supreme Court has not limited the privilege to newspaper reporting," the
court said, referring to the court's "guiding light" in the Branzburg case.
"It has in fact held that the press comprehends different kinds of publications
which communicate to the public information and opinion."
Thus, as long as the film communicated important information to the public,
Hirsch could be defined as a journalist.
Question 4: Did the writer have an intent to publish information for the public
at the inception of the newsgathering?
Andrea Reynolds, who wanted to write a book that would vindicate her close
friend, Claus von Bulow, in the attempted murder of his wife, Martha, invoked a
reporter's privilege and an attorney-client privilege when she was subpoenaed in
a civil lawsuit in 1986 (von Bulow v. von Bulow, 1987). Claus von Bulow had been
acquitted by a jury in an earlier criminal trial of putting his wife into a
permanent coma by injecting her with insulin and other drugs. But his adult
children, who didn't believe his innocence, had started a civil lawsuit against
him. The von Bulow children wanted to see the manuscript of Reynolds'
unpublished book and the notes Reynolds took while observing von Bulow's
Reynolds was actually barred from attending von Bulow's criminal trial but took
notes while watching the case on a TV monitor. Reynolds also claimed to have
been hired as a paralegal for von Bulow's criminal defense team, and she had
commissioned investigative reports on the lifestyle of the von Bulow children.
She asserted that she was "acting as a writer" for the German magazine Stern
which published an article about von Bulow. She said The New York Post had
issued her a police/press pass so she could cover the criminal trial and that
she had a 1979 press card from Polish Radio and Television. However, during her
deposition, she admitted she had never published anything under her own name
(She had drafted the Stern article for another writer.) and that negotiations
with the Post never came to fruition. In addition, her book manuscript about
Claus von Bulow's criminal trial was not prepared under contract.
A federal court judge ordered her to produce the information requested by the
von Bulow children. She submitted the investigative reports and notes in camera
but she retained her manuscript. The judge cited her for contempt, and she
appealed to the 2nd Circuit Court of Appeals.
The Appeals Court considered both the New York Shield Law and the federal Rules
of Evidence in determining in 1987 that Reynolds was not a journalist. (The
rules direct prosecutors and other attorneys to negotiate in media subpoena
cases and to make every effort to obtain the information from alternative
Although someone who is not normally a member of the "institutionalized press"
may assert the journalist's privilege, the court said the so-called journalist
must pass a new, two-prong test:
y Demonstrate the intent to use the material to disseminate to the public
y Demonstrate that such intent existed at the inception of the newsgathering
Since Reynolds had testified that she commissioned the investigative reports on
von Bulow's children to establish their credibility "for my own peace of mind,"
she did not meet the first test.
Her claim that her manuscript contained "my memories" was also used against her
for the second test. The court said:
"An individual's memories are not privileged by virtue of the First Amendment
merely because, at a later date, those memories are committed to writing."
Reynolds had also told the court the notes she took while watching von Bulow's
criminal trial were "worthless doodles" and that her relationship with the
publisher of her proposed book "has nothing to do with my privilege as a
Reynolds' attorneys called the Appeals Court ruling a "harsh new requirement"
that contravened the First Amendment's encouragement to write and publish
first-hand accounts of newsworthy events "which are available only from
eyewitnesses and participants" (Media Law Reporter News Notes, 1987). It would
have a chilling effect on authors and other observers of important events, they
said, who should not write about controversial subjects, except in the "unlikely
event" that they had "an intent before the events occurred to publish the
The very labeling of the criteria as a "test" calls for comparison with the
licensing tests and fees before the adoption of the First Amendment.
Question 5: Does the content go to the heart of the "journalism," or is the
claim based on the format of the medium or on the job title of the requesting
Ronald Watkins, an investigator who has authored books on topical and
controversial subjects, was served with a subpoena in Shoen v. Shoen (1993), a
libel action. Two estranged sons of U-Haul founder Leonard Shoen wanted Watkins
to testify about what their father told Watkins for a forthcoming book about the
Shoen family feud. Mark and Edward Shoen also wanted Watkins to tell them what
their father had said about the unsolved murder of their sister-in-law, Eva Berg
Shoen, wife of their older brother, Sam. (Leonard Shoen believed Edward and/or
Mark were responsible for her murder.) When Watkins claimed the journalist's
privilege, the Shoen sons argued that a book author was not a journalist so
Watkins was therefore ineligible for protection.
The Ninth Circuit U.S. Court of Appeals ruled in September 1993, however, that
the privilege was not limited to reporters employed in the traditional news
media. Citing the von Bulow and Lovell cases, the three-judge panel said the
privilege was designed to protect the activity of investigative reporting
"regardless of the medium used to report the news to the public." The Shoen
"Investigative book authors, like more conventional reporters, have historically
played a vital role in bringing to light "newsworthy" facts on topical and
controversial matters of great public importance."
The panel said, for instance, that it would be "unthinkable" not to grant a
privilege to such authors and social critics as Rachel Carson, Ralph Nader and
Jessica Mitford solely because they were not employed as reporters for a
newspaper or TV station:
"What makes journalism journalism is not its format but its content."
Watkins was allowed to invoke the journalist's privilege because he was making a
contribution to the public discourse on a major issue.
Question 6: Is the news or information factual?
The case of wrestling commentator Mark Madden is the most recent, and perhaps
the most unusual, to involve a legal definition of a journalist (Titan v. TBS,
1998). The litigation, which also involves a libel suit, is being watched by
First Amendment lawyers concerned about having a court decide who is a
journalist and who is not, based on the content of protected free speech.
Madden is employed as a commentator by Turner Broadcasting Systems (TBS) which
promotes its World Championship Wrestling (WCW) on a 1-900-number hotline. He
was subpoenaed to testify in a libel, unfair trade practices and copyright
infringement suit filed by a competitor, the World Wrestling Foundation (WWF).
WWF is owned by Titan Sports, Inc. Madden gave a deposition in the case in July
1996. In it, he explained that he received information for his commentaries from
employees at TBS and WCW and that higher-ups had editorial control of his
material. His commentaries, often-nasty slams at the competition, allegedly
included insults to the owner of the WWF.
Madden admitted in his deposition that his scripted announcements are as much
entertainment and hype as journalism. But, citing his privilege as a journalist,
he refused to name the specific source of a commentary that allegedly insulted
WWF owner Vincent McMahon.
The U.S. District Court of Pennsylvania ruled in April 1997 that Madden was
entitled to protect his sources under the state shield law and under the federal
rules of evidence. The court cited the von Bulow case in its decision, arguing
that von Bulow was persuasive in articulating that the privilege is supposed to
protect authors who have an intent to disseminate information to the public. The
untraditional medium, in this case, is not as relevant as Madden's intent to
disseminate news and information, the court said in finding that Madden was a
A Third Circuit Court of Appeals panel, however, overruled the District Court
(In RE: Madden, 1997). Judge Nygaard noted other courts have had to fashion
tests to determine who was a journalist when the public's need to be informed
was threatened. The tests in von Bulow and Shoen, for instance, emphasized the
intent behind the newsgathering process: to bring important information to the
public, no matter what the medium, Nygaard said.
Nygaard said the information Madden distributed to the public didn't meet any
kind of test of importance. He also went on to describe what types of activities
are not journalism:
"This test does not grant status to any person with a manuscript, a web page or
Instead, it "requires an intent at the inception of the newsgathering process to
disseminate investigative news to the public. As we see it," Nygaard said, "the
privilege is only available to persons whose purposes are those traditionally
inherent to the press; persons gathering news for publication It is the burden
of the party claiming the privilege to establish their right to its protection."
Madden's activities on the 1-900-hotline amounted to little more than "creative
fiction about admittedly fictional wrestling characters who have dramatic and
ferocious-sounding pseudonyms like 'Razor Ramon' and "Diesel,'" Nygaard said.
Madden was not investigating "news," despite his claim to be "pro-wrestling's
only real journalist." Most, if not all, of the information Madden disseminated
in his commentaries was given to him directly by WCW.
"He uncovered no story on his own nor did he independently investigate any of
the information given to him by WCW executives," Nygaard found. As such,
Madden's primary goal was not to gather news and disseminate it to the public.
Rather it was to provide advertisement for the wrestling federation and
entertainment to the fans. Madden's work "cannot be considered 'reporting,' let
alone 'investigative reporting,'" Nygaard said.
"By his own admission, he is an entertainer, not a reporter, disseminating hype,
Even if Madden could convince a court that he was a journalist, entitled to
protect his sources, Nygaard ruled that Madden failed to convince the court that
he had the required intent of newsgathering at the beginning of his "research"
"He, like other creators of fictional works, intends at the beginning of the
process to create a piece of art or entertainment," Nygaard wrote, pointing to
Madden's deposition statement in which he said that he often said things "for
satire value" or just for humor to get people excited.
"Fiction or entertainment writers are permitted to view facts selectively,
change the emphasis or chronology of events or even fill in factual gaps with
fictitious events - license a journalist does not have," Nygaard wrote.
Judge Nygaard isn't the only one who delineates entertainment and journalism.
The Washington Post's Jonathan Yardley lambasted ABC News in 1997 after the
Prime Time Live journalists who produced an undercover report about food
contamination at the Food Lion chain were found guilty of fraud, trespass and
other charges. Yardley said what ABC had done was not reporting at all; it was
entertainment. As entertainment, their actions and their report were less worthy
of First Amendment protection, he said. (The News Media AND THE LAW, 1997)
Part II: How do we define a new media journalist?
The 1973 Webster's New Collegiate Dictionary defined a journalist as "a writer
or editor for a news medium" and "a writer who aims at a mass audience." (A
similar definition can be found in the 1998 dictionary, along with its secondary
definition: "someone who keeps a diary or journal.")
Twenty-five years ago, a newspaper, magazine or broadcast station was usually
defined in that traditional sense: a business with a regular publication and
broadcast cycle. The aim of the newspaper, magazine or broadcast station was to
communicate to the masses. Fifteen years later, the federal Office of Technology
Assessment had a similar description for a traditional mass medium of the 1980s:
"a business, located in a community, dependent on the support of readers and
viewers, committed to a regular cycle of publication and broadcast, managed by
responsible persons and, striving - to some degree - for objectivity, balance
and a fair presentation of the facts."
In the 1990s, though, the digital revolution and Mark Madden have rapidly
transformed that concept. Advances in global communication technologies and the
increasing establishment of news sites in cyberspace have blurred a simple
concept like "place," for instance. New technologies have changed the way
journalists gather, produce and disseminate information. The very concepts of
"mass media," "publication" and "broadcast" are being redefined as new types of
mass communication are invented and adopted by individuals as well as by members
of the traditional press. As everyone knows, anyone with a computer (and a
modem) can become a journalist, editor or "desktop" publisher.
The traditional journalism paradigm of having the "Fourth Estate" gather,
process and filter news for the masses, the one-to-many model, is being expanded
to include one-to-one models and many-to-many models (Yeap, 1998).
Taken together, current and anticipated advances in technology suggest a
fundamental shift from the concept of "press" to the concept of "network." (U.S.
Congress, Office of Technology Assessment, 1988)
The line between audience and author is blurred. Readers and wrestlers become
journalists; listeners become broadcasters and angry citizens become electronic
Or do they?
And are they protected by the First Amendment?
What will happen if the courts begin applying its decision framework from
journalist's privilege cases, for instance, to cases involving the Internet? Do
the definitions seem relevant in the new media world? What problems can we
expect when courts and state lawmakers try to distinguish between the
traditional, institutional press and everybody else?
Let's look at the six questions that state and appeals courts have used to
interpret state shield laws.
~ Must a journalist wear a "press hat" at all times on the Internet?
Determining who is a journalist and who is not in any mass medium has been
problematic for the average citizen for some time. Tabloid TV shows make it
difficult for the average citizen to distinguish between Oprah Winfrey and Diane
Sawyer. Former military men like Oliver North become successful radio talk show
hosts. So the fact that it's difficult to verify anyone's identity on the
free-wheeling, public space called the Internet, much less the journalistic
credentials of someone like Matt Drudge, is nothing new.
Much of the appeal of the Internet is its democratic, non-hierarchical
structure. No one controls news on the Internet. There are no federal licensing
requirements as there are in broadcasting, no incorporation papers for big media
companies, no credentialling system of any kind for journalists. Anyone can be a
publisher on the Internet and become famous like Matt Drudge.
In Usenet groups and other discussion forums, amateur and professional
journalists alike may "lurk" and pick up ideas for stories. And because just
about everything on the Internet is fair game, public and "published" for all
the world to see, it's unlikely that a distinction about roles would even be
relevant in the online environment. For example, it wouldn't matter whether Matt
Drudge, Mary Homemaker or Ted Koppel identified themselves as journalists before
"reporting" on some illegal activity they observed on the Internet. The
democratic nature of the Internet means anyone and everyone is a publisher, a
researcher, a gatekeeper, a journalist.
Similarly, people who communicate on the Internet through web pages, chat rooms
or similar "spaces" have no expectation that their speech is confidential.
Where would a journalist hang a press hat in cyberspace, anyway?
~ How important is confidentiality to the writer's work and his or her
Notions of confidentiality prove quite troublesome on the Internet. The
packet-switching transmission technology of the Internet means that messages
rarely go from Point A to Point B, but travel in a circuitous route. Indeed, the
Internet was created by the military precisely to allow communication to
continue without interruption even if major transmission lines were destroyed in
an enemy attack.
For these and other reasons, the Internet can be in no sense considered a
"repository" of confidential information, and self-proclaimed Internet
journalists do not depend on confidential rapport with sources. On the contrary,
as with Hays and Wickham (below), Internet researchers are more likely to rely
on public databases and other documents as well as interviews as their source of
information. And the preservation of the republic is hardly in the hands of the
likes of Matt Drudge and Bill Sheehan.
In New York v. LeGrand, former journalist turned book author Hays wanted to keep
his interview material confidential until his book was published. On the
Internet, however, it is hard to imagine a case where a writer/journalist would
not want to immediately publish his or her work. Time delays serve no purpose on
a medium that is instantaneous, except in the case of a commercial proposition.
~ Is the author investigating information for the public?
This litmus test has already been used in the case of Bill Sheehan. Like
filmmaker Hirsch, Sheehan's sole mission is to get the public to pay attention
to the alleged misbehavior and abuse of power credit reporting agencies. His
opinion is just the kind of public information the First Amendment was designed
The Internet is already awash in such amateur journalistic web sites. In another
Washington state case, an electrician from Cle Elum has become a one-man
investigative news wire by alerting the public to how state employees use their
office computers. Dave Wickham's investigations found that state workers were
posting non-business messages on the Internet during office time (Noack, 1998).
Wickham now uses his own web page to alert taxpayers in all 50 states about
state employees conducting personal business over the Internet during working
Under the common law set in the shield law cases, Wickham could be deemed a
journalist because he is engaging in the activity of investigative reporting. He
is a watchdog over how state money is spent and he is publicizing important
information to the public.
~ Did the writer have an intent to publish information for the public at the
inception of the newsgathering process?
The tests laid down in the von Bulow case to determine whether someone could be
called a journalist were that the information had to be important to the public
and that the writer must have an intent to publish these important matters at
the inception of the newsgathering process. Just as it has been criticized as a
harsh, even "chilling" new standard for traditional writers to meet, the
two-prong von Bulow test would make it near impossible for most amateur online
journalists to qualify for legitimacy on the basis that they are "acting" as
journalists. The World Wide Web is filled with personal home pages of both the
famous and the obscure. These web sites are often filled with "worthless
doodles" such as listings of favorite movies and restaurants, photos from family
reunions and other material people without Internet access use for personal
scrapbooks. An individual's memories, as the court ruled in the von Bulow case,
are not protected by the First Amendment merely because the author put them in a
~ Does the content go to the heart of the "journalism," or is the claim based on
the format of the medium or the job title of the requesting party?
Is any kind of "news" and any kind of communication on the Internet journalism?
One of the inherent characteristics of the Internet is its interactivity. As
"interactivity merges speaking with listening" (Rafaeli and Sudweeks, 1997), it
becomes difficult, almost by definition, to determine who is the
gatekeeper/journalist and who is the audience/message receiver. Legitimate news
organizations continue to try different ways of integrating interactivity into
their online news products, often playing a communications facilitator role by
encouraging and empowering diverse and sometimes under-represented groups to
take part in how the news product is defined. "You're the editor - what do you
do?" is an ongoing reader forum in the online edition of the St. Petersburg
(Fla.) Times, for example, and msnbc.com asks readers to rate the top story of
Although few online newspapers are really taking advantage of Internet
interactivity to bring more voices into their news reports and to truly share
the gatekeeping role (Tankard and Ban, 1998), a major trend in the newspaper
industry today is focused on bringing reader ideas and voices into the news
report. Proponents of civic journalism, or public journalism, argue that reader
involvement is at the very heart of the news business. Online newspapers present
an almost perfect format to do just that. But it's not just the format of the
medium that makes this journalism. It is the desire to give every reader a
voice. Under that criteria, almost any civic-minded individual with a computer
and a modem could qualify as a new media civic journalist, not just the
institutionalized press on a civic journalism mission. The convergence of the
new media and the "back-to-basics" nature of the civic journalism movement could
very well redefine what journalism is all about.
~ Must a journalist's work product be factual?
The District Court decision in the Mark Madden case notwithstanding, it's hard
to imagine that the truth would lose its importance with newsgatherers just
because a new medium comes along. Fact and fiction will always separate
journalists from other writers and publishers. As the appeals court said in
denying Madden journalist status, a journalist is not "any person with a
manuscript, a web page or a film." It's what makes journalism journalism.
While the debate rages on over who is a new media journalist, seasoned
"traditional" journalists who earned their reputations with investigative
reports about government's and society's failings now find themselves "shoveling
content" online (Weinberg and Ianzito, 1996).
"Content" in online newspapers are frequently databases of health, school and
sports statistics as well as old news, the newspaper's archives. Is it news? An
editor for an online newspaper complained at a conference of the Committee for
Concerned Journalists in September 1998 that he hadn't been doing much
journalism the previous two weeks. Instead, the editor explained, he was
"putting up raw data" from Kenneth Starr's report to his newspaper's web site.
A journalist, it seems in some cases, does not need to be a gatekeeper at all.
He or she does not have to "process" or "filter" information to be called a
journalist. In fact, one court has said there are no journalists in cyberspace
(Digital v. Altavista, 1997). And with the Communications Decency Act, if an
information-providing organization does nothing more than distribute information
on the Internet, it is protected from charges of libel (Blumenthal v. Drudge).
Do all these changes mean Congress (or the courts or state legislators) should
make laws defining who a real journalist is?
The idea of defining journalism and the role of a journalist - even with a
press-friendly shield law - poses problems for those who consider the press
freedoms granted by the First Amendment to be absolute. As stated earlier, the
very idea that shield laws and case law set criteria by which to judge who is a
journalist begs to be set next to the words, "Congress shall make no law ... ."
Scholars and other communications researchers have disagreed on definitions for
journalism and journalists for many years. They also disagree on whether the
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then why are shield laws and press passes needed in the first place? And if the
authors of the First Amendment meant to distinguish between the public and the
media, on the other hand, then the First Amendment is an inherent paradox. For
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