September 09, 2013 Articles

And You Call Yourself a Journalist!?

A recent Fourth Circuit decision intensified the debate surrounding the new federal shield bill.

By Jonathan Peters – September 9, 2013

The spring and summer of 2013 did not signal the high-water mark of press freedom in the United States. In May, the Department of Justice (DOJ) confirmed that it had obtained months of phone records of Associated Press reporters and a “portfolio of information” about a Fox News correspondent—all obtained to investigate the sources of certain leaks and possibly to intimidate leakers. Criticism of the DOJ was swift and harsh, and it came from all directions, with Lucy Dalglish, dean of the journalism school at the University of Maryland, putting it best: “The message is loud and clear that if you work for the federal government and talk to a reporter that we will find you.”

To reassure the press that it would not be “dragged into a mass hunt for government leakers,” Attorney General Eric Holder announced a new set of guidelines to limit the discretion of DOJ lawyers to obtain reporters’ records, and President Barack Obama began pushing for a shield bill that would allow reporters in some cases to protect their confidential sources and data. He asked Sen. Charles Schumer (D-NY) to reintroduce the Free Flow of Information Act of 2009, a shield bill negotiated between the journalism industry and the White House. (It died in January 2011, when the 111th Congress ended).

Shortly thereafter, in July, a federal appeals court ruled that a New York Times reporter must testify in the criminal trial of a former CIA officer accused of providing classified information to him. Two members of a three-judge panel for the U.S. Court of Appeals for the Fourth Circuit ruled that reporters do not have a First Amendment right to refuse to testify about their sources. Notably, the Fourth Circuit covers Maryland and Virginia, where most national-security agencies, such as the Pentagon and the CIA, are located. Thus, if the decision stands, it could have a major impact on reporting about national-security matters.

Among other things, the Fourth Circuit decision intensified the debate surrounding the new federal shield bill, which would create a balancing test for courts to use before compelling disclosure from reporters. The test would take into account the public interest in disclosure and the public interest in maintaining the free flow of information, with the balance favoring disclosure if the government shows that disclosure would help prevent a terrorist attack or other acts likely to harm national security. It is unclear, however, who would be entitled to claim the shield if it passed.

“People Who Aren’t Really Reporters at All”
The bill is supposed to cover journalists, and as of this writing, it defines a journalist as a person with a "primary intent to investigate events and procure material" to inform the public of news by “regularly” gathering information through interviews and observations, then disseminating that information to the public. Further, a journalist must intend at the start of the newsgathering process to disseminate the information. At one end of the spectrum, Schumer said the definition is flexible enough to accommodate the changing media environment. At the other end, Sen. Dianne Feinstein (D-CA) said the definition “would grant a special privilege to people who aren't really reporters at all, who have no professional qualifications.”

The problem of defining a journalist—relevant under not only shield bills but also under the federal constitution and state retraction statutes—is complicated by innovations in technology, from mobile applications to the Internet, that have created new channels for people to communicate with mass audiences. Does an unpaid blogger qualify to claim the legal privileges for journalists? What about a contributor to CNN iReport, the citizen-journalism platform? The answer depends on the definition contained in the legal source. Some are inclusive while others are exclusive. It is beyond the scope of this article to survey every legal source that defines a journalist, but consider those articulated under the First Amendment.

In some jurisdictions, it is possible under the First Amendment for journalists to claim a qualified privilege to refuse to reveal unpublished information and the identity of sources. The big question has been: Who is qualified to claim the privilege? Until the 1990s, few federal courts had tried to answer that question, and some had said that the privilege should not exist because it was too difficult to determine who qualified for it. For example, in Branzburg v. Hayes, 408 U.S. 665, 703–04 (1972),Justice Byron White, writing for the majority, noted:

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.

No doubt, it is conceptually difficult to define a journalist, but those difficulties did not stop certain lower courts from trying.

Defining Journalists by Way of Journalism
Most significantly, the U.S. Court of Appeals for the Third Circuit addressed the problem of defining a journalist in the case In re Madden, 151 F.3d 125 (3d Cir. 1998). The court articulated a three-prong test, holding that anyone asserting the privilege must satisfy these elements: “(1) the claimant was engaged in investigative reporting; (2) the claimant was gathering news; and (3) the claimant possessed the intent at the inception of the newsgathering process to disseminate the news to the public.” Clay Calvert, “And You Call Yourself a Journalist?: Wrestling with a Definition of “Journalist” in the Law,” 103 Dickinson L. Rev. 411, 426 (1999). Thus, the test required courts to define two other complex concepts: investigative reporting and news. Although the Third Circuit did not define either one, it noted that the test “does not grant status [automatically] to any person with a manuscript, a web page or a film.” In re Madden, supra, at 129.

Other circuits had taken similar approaches. In Von Bulow v. Von Bulow, 811 F.2d 136 (2nd Cir. 1987), the U.S. Court of Appeals for the Second Circuit held that "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material—sought, gathered or received—to disseminate information to the public and that such intent existed at the inception of the newsgathering process." The opinion went on to say two important things. First, the person invoking the privilege need not be a member of the “institutionalized press,” as long as he or she is engaged in “activities traditionally associated with the gathering and dissemination of news.” Second, “[t]he intended manner of dissemination may be by newspaper, magazine, book, public or private broadcast medium, handbill or the like, for 'the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'"

Meanwhile, the U.S. Court of Appeals for the Ninth Circuit ruled in Shoen v. Shoen, 5 F. 3d 1289 (1993), that “the journalist’s privilege is designed to protect investigative reporting.” The court focused on the activity of the person invoking the privilege. “[W]hat makes journalism journalism,” the court commented, “is not its format but its content.” The court concluded that the privilege protected information gathered in the pursuit of news, but it did not define news. Rather, it simply acknowledged the importance of "newsworthy" facts about matters of public interest.

From those leading cases, which define a journalist by way of journalism, emerge four principles: (1) The medium does not determine whether a person is a journalist; (2) the intent of the person asserting the privilege is important, insofar as he or she must intend to disseminate information to the public; (3) the activity is important, because the person asserting the privilege must be engaged in investigative reporting; and (4) the content disseminated must be news. Calvert, supra, at 430–31. Notably, the third and fourth principles are not self-evident. What is investigative reporting? What is news? No court has answered those questions precisely, but a few decisions are on point.

“[T]he Reporter’s Privilege Is Available Only to Reporters”
In Cusumano v. Microsoft,162 F.3d 708 (1st Cir. 1998), the U.S. Court of Appeals for the First Circuit extended the privilege to two business professors who conducted interviews while writing a book. The court said the interviews were protected because their “sole purpose” was “to gather data so that [the professors] could compile, analyze, and report their findings [about] management practices in the internet technology industry.” Similarly, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992), the U.S. District Court for the District of Massachusetts said the privilege protected a financial advisor who researched companies for institutional investors. His reports contained analysis, recommendations, and conclusions.

More recently, in Tripp v. Department of Defense, 284 F. Supp. 2d 50 (D.D.C. 2003), the U.S. District Court for the District of Columbia extended the privilege to a writer for the military publication Stars and Stripes. Concluding that the writer had “engaged in newsgathering,” the court noted that she had “interviewed a number of individuals while researching [the article], an activity which is a ‘fundamental aspect’ of investigative journalism.” The court also commented that the writer had “engaged in traditional newsgathering activities, such as keeping notes.”

Finally, in U.S. Commodity Futures Trading Commission v. McGraw-Hill Co., 390 F. Supp. 2d 27 (D.D.C. 2005), the U.S. District Court for the District of Columbia ruled that the privilege applied to a publisher producing indices and price ranges for the natural-gas market. The court said that the “reporter’s privilege is available only to reporters” and referred to the importance of “engaging in editorial judgments.” The court found that the publisher’s indices and ranges included extra-market factors affecting “supply and demand,” and thus the publisher “engages in journalistic analysis and judgment in addition to simply reporting data.”

Those cases illustrate the nature of investigative reporting. It involves people who conduct interviews, analyze things, make recommendations, draw conclusions, describe things, keep notes, and make judgments. Presumably, then, news as an output would reflect some of those elements: quotes, analysis, recommendations, conclusions, and descriptions. Still, no court has clearly and directly explicated the concepts of investigative reporting and news.

It is a challenge to litigate privilege cases, and it is a challenge in privilege cases to bargain in the shadow of litigation. One major reason: The threshold issue, the definition of a journalist for legal purposes, is largely incoherent. It’s complicated by technological innovations that have enabled more people than ever before to communicate with mass audiences, using mobile networks and the Internet as their modern-day leaflets or printing presses. The production and distribution of news is widely dispersed, and members of the institutional press no longer hold a monopoly on journalism that reflects society, monitors power, holds people responsible, and generates a public conversation about the issues of the day.

As noted earlier, it is beyond the scope of this article to survey every legal definition of a journalist, but those articulated under the First Amendment demonstrate the variety of dimensions and indicators that courts have used. Whether or not Congress draws from them as it refines the federal shield bill, going forward, any definition of a journalist ought to take into account the evolving nature of the media landscape. Otherwise, a large number of actors in the journalism ecosystem (e.g., unpaid bloggers who report or comment on matters of public concern) will be in the position of fulfilling community needs for news without the assurances that keep traditional journalists safe when their work provokes a backlash.

Keywords: civil rights litigation, First Amendment, reporter's privilege, shield law, journalist, journalism, definition

Jonathan Peters is a media lawyer and an assistant professor at the University of Dayton.

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