A Stitch in Haste

Ever since I was a law student sitting in Evidence class trying to sort out the various rules regarding testimonial privilege, I have tried to understand why we entertain the concept of a "journalist's privilege."

To me the analysis is more simple than the current debate would suggest: If you believe in a testimonial privilege, then you must by definition believe that those protected by such laws are themselves "privileged" people.

Why should we think this regarding journalists? How exactly are they "privileged people"?

Lawyers are indeed privileged people with respect to their clients — justice is thwarted otherwise. Physicians are indeed privileged people with respect to their patients — healthcare is thwarted otherwise. Clerics are privileged people with respect to their penitents — spirituality is thwarted otherwise. Spouses are indeed privileged people with respect to each other — familial comity is thwarted otherwise. (SIDEBAR: Try telling gays to somehow replicate that through contract!)

Now try extending that reasoning to journalists with respect to their sources. What exactly is being "thwarted"?

Freedom of the press? No. Freedom of the press means the right to say what you want, when you want, the way you want. The source has nothing to do with it.

Whistleblowing? No. Whistleblowers have other options and other protections.

The ability to undermine your employer? Are we sure that's something we don't want thwarted?

Note how journalist shield laws turn privilege on its head — all other forms of testimonial privilege are meant to protect the conveyor of the information (i.e., the client, patient, penitent or accused spouse), not the witness (i.e., the lawyer, physician, cleric or confidant spouse). Journalist shield laws are backwards — they protect the interests of the journalist, not those of the source.

The journalists themselves (e.g., the New York Times editorial board) insist that shield laws would not apply to protecting those engaging in criminal conduct. But again, that's exactly why we have the other, higher forms of privilege — to protect the conveyor of the information from criminal or civil liability. If we're not granting that same protection to a journalist's source, then why bother in the first place, except to protect the journalist?

I was never particularly impressed with the Fourth Estate even before I became a blogger; I'm even less impressed with it having become a blogger. I simply don't think they're as important as those who currently enjoy privilege. One can love freedom of the press without loving reporters.

I've blogged previously that I don't believe in "journalist shield laws" because the concept of "legal privilege" should only apply to privileged people, which journalists are not. Privilege is also supposed to protect the conveyor of privileged information, not the recipient; a journalist shield law turns this axiom upside-down.

But if you take as a given that there should be some kind of "journalist shield law," then it should actually apply to journalists as they are engaging in journalism.

So here is why the "blogger exception" to the proposed federal journalist shield law makes no sense whatsoever:

Bloggers who actually gather news would be protected under the proposed federal shield law, the legislation's first author, U.S. Rep. Mike Pence, R-Ind., told the Inland Press Association Monday.
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Pence said bloggers would likely have to be considered on a "blog-by-blog" basis.
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"Frankly, there are some that are out there gathering news," Spence said at Inland's 120th annual meeting. "There are many people though, who just link to your newspapers. It would be hard to argue to anyone that privilege applies to those people just because they have a Web site."

Huh? Remember what a journalist shield law is: a legal protection against being compelled to disclose the identity of confidential sources.

So how is someone who "just links to newspapers" affected by a shield law in the first place? If you're blogging about what your confidential sources tell you, then by definition you are not "just linking to newspapers," and if you are "just linking to newspapers," then by definition you have no confidential sources and have no need for a journalist shield law.

What Representative Pence and his Senate counterpart, Dick Lugar, cannot tiptoe around is the fatally flawed definition of a "covered person" in their proposed "Free Flow of Information Act" (H.R. 581, S. 340):

[A]n employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such [an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means].

In other words, under the Pence-Lugar bill, a journalist is not someone who "does journalism" but merely someone employed by the mainstream media.

If there is going to be a "shield law," then it must be a journalism shield law rather than a journalist shield law. If the hack politicians really care about the "free flow of information," then fine — protect the flow and not the logjam.

Journalist is as journalist does...

More thoughts from Jonah Goldberg.

(Cross-posted at PoliBlog.)

"Coming over the airwaves
The man says I'm overdue.
'Sing along, send some money!
Join the chosen few!'"
--Huey Lewis & The News, "Jacob's Ladder"

Every so often, I get a piece of spam at work from some outfit called "Madison's Who's Who" informing me that I'm important enough of a corporate executive (or lawyer, or investment banker, or something) to be on their email marketing list included in their publication -- for a modest fee of $600 per year, give or take.

Then I think back to "Who's Who Among American High School Students" -- another rip-off designed to bilk proud parents. Was there a "Who's Who Among American Law School Students"? I can't recall...

Well, you just knew that such a time-tested scam would reach the blogosphere eventually:

Robert Cox wants to bring some professionalism to the blogosphere.

As president of the Media Bloggers Association, Cox is about to unveil new membership policies designed to help bloggers who see themselves more as journalists than freeform diarists.
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Among the planned criteria: Members would have to take an online course offered by the Poynter Institute, a journalism think tank, covering legal issues related to blogging.

Members also could seek credentialed status by undergoing training or demonstrating other work as professional journalists.
...
Of course, having credentials from Cox's organization won't guarantee access.

No, but they'll guarantee that the "Media Bloggers Association" (good grief!) and its co-conspirator "think tank" (good grief squared!) will make some easy money by bilking fools. The more things change...

The measure of a quality blogger is not the junk posing as "credentials" that he buys over the Internet from hucksters. It's his readership, as well as the response he generates from his audience. No different than any other journalist. Go figure.

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As I've blogged previously, journalists are simply not "professionals" on a par with truly credentialed occupations such as physicians, attorneys or accountants. They are not required to graduate from a privately accredited school, they need pass no comprehensive examinations, they endure no continuing education requirements and they swear to no ethics codes. Their insistence that they are somehow an "elite" (especially relative to "mere" bloggers) and should therefore enjoy special status -- up to and including testimonial privilege -- is simply absurd.

Question: What's the only thing more pathetic than an occupational journalist (journalism is not a true profession, therefore there is no such thing as a "professional journalist") who calls for licensing of bloggers?

Answer: An occupational journalist who calls for mandatory licensing of bloggers, is a mere copycat and, arguably, a near-plagiarist:

Advocates argue that the acts of collecting and distributing makes these people "journalists." This is like saying someone who carries a scalpel is a "citizen surgeon" or someone who can read a law book is a "citizen lawyer."

It took me a while, but I knew I had seen the insolent gobbledygook term "citizen surgeon" somewhere before:

Bloggers are called "citizen journalists"; alternatives to Western medicine are increasingly popular, though we can thank our stars there is no discernible "citizen surgeon" movement[.]

The hubris of these insecure scriveners almost rivals that of politicians. As if composing the police blotter were equivalent to inserting an IV, or as if asking Dana Perino a question were akin to performing an emergency appendectomy.

My response then is my response now:

It is precisely the fact that occupational journalists are not "professionals" on the same plane with physicians (or nurses, attorneys, veterinarians, accountants or even optometrists) that is finally being exposed by blogging.

Occupational journalists face no mandatory educational curricula. They face no licensing examinations, no continuing education requirements, and need not subscribe to any legally binding code of ethics.

The very fact that occupational journalists often cannot see the difference between a journalist and a surgeon is why they are increasingly being ignored. They are not credentialed -- and it drives them batty that laypersons no longer see any need afford them the respect that they afford the true (i.e., credentialed) professions.

The ironic part of this whole "decline and fall of MSM" debate continues to be the pesky fact that most bloggers, myself included, freely admit that we are not news gatherers and do not strive to be news gatherers. We are commentators. I have no desire to be the next Brian Williams -- only the next George Will.

The point is that commentators -- and their readers -- often want raw news, without analysis or redaction. I love traditional news -- but only the kind that comes from the AP, Reuters or Dow Jones: objective, succinct and essentially anonymous. It's the faux "professionalism" of the high-profile occupational journalists -- the same ones who throw the tantrums -- that I find vestigial and in some cases counterproductive. Which, of course, is precisely why they throw the tantrums in the first place.

(Via Publius Endures. More thoughts at Hot Air, Gun Toting Liberal, BNN, Publius' Forum, Thousand Papercuts, Strata-Sphere, etc.)

Technorati Tag: David Hazinski

It's quite simple really: If the Associated Press wants me never to link to their material, then I'm more than willing to oblige. I have other options.

But I never link directly to AP anyway. I link to sites that may or not be using AP material. So if, for example, I link to the Deseret News, then I will only acknowledge requests or demands from the Deseret News. I do not recognize AP's standing to ask or demand anything from me one way or the other.

And I wouldn't have bothered pointing that out, or blogging about this story in any way, until I saw this:

[An A.P. executive] said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others.

Would that happen to be, by any chance, the same "Media Bloggers Association" that sells worthless blogging "diplomas" and "credentials"?

Maybe the AP should do some investigative journalism about that.

(Via The Crossed Pond.)