“Who’s a journalist these days, and who deserves privileges?”

Jay Black

Presented to “Confidential Sources: What Does Branzburg Mean Now?”

conference at University of Oregon, Eugene, Oregon, October 5, 2007

When we try to define journalism/journalists and determine who among the claimants deserves professional status and legal privileges, we enter a foggy semantic terrain. To navigate it, we do well to sift and sort through two domains: the domain of professional ethics and the domain of law. These domains overlap and are interdependent, but they need to be articulated for this debate to make sense. (I am indebted to Eric Ugland and Jennifer Henderson for helping frame this debate; their argument will appear in an upcoming issue of the Journal of Mass Media Ethics.)

Ethics and law share a concern with advancing a socially shared vision of the public good, but they go about achieving it in different ways. Ethics focuses on the voluntary nature of our behavior, and provides categories, principles, and exemplars by which our behavior can be judged. Ethics is “obedience to the unenforceable.”

Law, on the other hand, entails “obedience to the enforceable.” It deals with the arena of coerced compliance with respect to the minimum maintenance of social stability…the bottom line below which we should not fall, lest we be punished.

The roles of ethics and law should be seen as somewhat distinct:

The Domain of Ethics focuses on fundamental human values and moral imperatives, on principles of duty, virtue, care, and consequence—in short, on matters of character and moral autonomy, and self-imposed considerations of how we ought to treat one another in a world of voluntary relationships. As “obedience to the unenforceable,” ethics entails making tough decisions—not the obvious choices between right and wrong, but the tough choices between not-quite-completely-rights or even choosing the lesser of two wrongs. Professional ethics articulates benchmarks of performance, separating credible practitioners from hucksters and charlatans.

Standards of professional ethics are a sometimes confusing blend of “ideal expectations” that articulate positive, lofty aspirations of practitioners, and “minimal standards” that spell out, usually in negative and legalistic fashion, the “thou shalt not’s” of the craft. Professional ethics applies these principles to a particular group of practitioners; our concern today is with journalists and those who assume the trappings of journalism. Journalism ethics emphasizes freedom with responsibility, shared commitments, truthseeking and truthtelling, minimizing harm, and carefully balancing independence and accountability. As such, the calls are often tough ones, the lines often blurry between and among conflicting moral claims.

The Domain of Law demarcates the boundaries of citizens’ behavior, and accomplishes through coercion what ethics is often unable to achieve solely through appeals to conscience—in short, obedience to the enforceable. This domain is shaped by classical liberal ideas of autonomy, reason, and self-determination. Applied to journalism and public opinion, the legal domain is shaped by libertarian assumptions that society is best served by minimally interfering with the media’s right to gather and report information; that “debate on public issues should be uninhibited, robust and wide open” (Times v Sullivan), and that the public is enriched by exposure to diverse and antagonistic sources of information. The First Amendment to the Constitution—journalists’ favorite—grants the craft of journalism a relatively unique status among institutions, although our history is replete with statutory and constitutional laws, policies, administrative dictates, and informal privileges granted by government officials, all of which demonstrate that the “free press” clause is not absolute.

The domains of ethics and law are interdependent, as recognized in one of the oldest codes of journalism ethics, the Statement of Principles of the American Society of Newspaper Editors. ASNE’s preamble begins: “The First Amendment, protecting freedom of expression from abridgement by law, guarantees to the people through their press a constitutional right, and thereby places on newspaper people a particular responsibility.”

Let’s explore these two domains in more detail.

The Journalism Ethics Domain. Ed Lambeth puts journalism ethics in an historical context: “Conceived in the Renaissance, born in the Enlightenment, and nurtured to robust life in the modern west, journalism inherits the legacy of the larger society: the principles of truth, justice, freedom, humaneness, and individual responsibility.” (Committed Journalism: An Ethic for the Profession, Indiana University Press, 1986, p. 27)

A casual review of media ethics literature shows that the craft claims to abide by the following ethical canons: truthtelling, independence, courageousness, proportionality, accuracy, fairness, objectivity, impartiality, comprehensiveness, transparency, accountability, stewardship, and humaneness.

One of the classics in journalism ethics, The Virtuous Journalist, by Stephen Klaidman and Tom Beauchamp (New York: Oxford University Press, 1987), challenges the press to reach for truth, avoid bias, avoid harm, serve the public, maintain trust, escape manipulation, invite criticism, and be accountable.

Bill Kovach and Tom Rosensteil have written an influential book titled The Elements of Journalism: What Newspeople Should Know and the Public Should Expect (2nd edition, 2007). The authors describe “…principles that have helped both journalists and the people in self-governing systems to adjust to the demands of an ever more complex world.” In a statement that is quoted frequently in assessments of contemporary journalism, Kovach and Rosensteil maintain that “the purpose of journalism is to provide people with the information they need to be free and self-governing.” To fulfill this task, they say,

•Journalism’s first obligation is to the truth.

•Its first loyalty is to citizens.

•Its practitioners must maintain an independence from those they cover.

•It must serve as an independent monitor of power.

•It must provide a forum for public criticism and compromise.

•It must strive to make the significant interesting and relevant.

•It must keep the news comprehensive and in proportion.

•Its practitioners have an obligation to exercise their personal conscience.

•Citizens, too, have rights and responsibilities when it comes to the news.” (pp. 5-6)

For additional insight into what sets journalism ethics apart from the ethics of some other professional group, consider the guiding principles in the Society of Professional Journalists’ code of ethics. The code adopted by the nation’s largest organization of rank and file journalists says journalists should 1) Seek Truth and Report It (Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.) 2) Minimize Harm (Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect.) 3) Act Independently (Journalists should be free of obligation to any interest other than the public’s right to know.) 4) Be Accountable (Journalists are accountable to their readers, listeners, viewers and each other.)

So far, my introduction to the media ethics domain can be said to apply primarily if not exclusively to traditional journalists working within traditional journalism organizations —AKA the “Mainstream Media,” or “MSM.” It is they who have laid claim to the First Amendment and other legal protections, they who claim to have historically informed the largest aggregates of society in matters of self-governance—and they who have garnered untold billions of dollars in revenue.

The dramatic decline in MSM’s credibility of late, and the challenges to its high status, can be traced to some extent to the brave new world of alternative journalism. Internet bloggers, desktop publishers, freelancers, and a host of “public communicators” who disseminate newsworthy information to others, usually in a sporadic and unregimented manner, have changed the journalism landscape.

Consider the new journalism world of FaceBook, MySpace, YouTube, specialized listservs, the Daily Kos, Instapundit, Slate.com and America’s 12 million other cyberspace bloggers, plus “fake news” comedians Jon Stewart and Stephen Colbert, and pundits such as Keith Olberman, Bill O’Reilly and Rush Limbaugh, along with the dozens of cable TV talking head shows and shoutfests—all examples of alternative journalism. (It’s interesting to note that 65% of bloggers don’t see their work as a form of journalism, but given a world with 12 million bloggers, that leaves 4.2 million who do think they’re journalists. And lest we forget: When Crossfire’s Paul Begala and Tucker Carlson ripped into Jon Stewart for his wildly successful “fake news,” Stewart ripped into Crossfire for harming democracy by simplifying political discourse. Crossfire was canceled, while The Daily Show is flourishing. For many of us, particularly the younger crowd, The Daily Show and The Colbert Report are primary sources of news…along with tidbits from the blogosphere. )

Consider the new world of citizen journalism, a multi-faceted environment that encompasses such activities as: mainstream media permitting signed or anonymous blogs on their websites; mainstream media recruiting non-journalists to provide expert or ideocyncratic reports and commentaries; open-source reporting—collaboration between reporters and sources/readers; open, unedited citizen bloghouses sponsored by mainstream media; newsroom citizen “transparency” blogs, wherein citizens serve an ombudsman or public editor role; stand-alone citizen-journalism websites, filled with either edited or unedited stories contributed by non-journalists; and Wiki journalism, allowing anyone to write a post a news story, and anyone to edit any story that’s been posted. (Steve Outing, “The 11 Layers of Citizen Journalism,” PoynterOnline, June 15, 2005, www.poynter.org/11layers.) These and other categories of citizen journalism exemplify the dramatic changes in journalism organizations’ standard operating procedures, and cause us to ask “who is a journalist, anyhow?”

We should also consider the ranks of public communicators, which include filmmakers, video documentarians, book authors, essayists, poets, and a wide array of public intellectuals. For all intents and purposes, many of them are “doing” journalism when they tackle significant issues of public importance, conduct research, interview sources, report data, and draw conclusions. (Some, like Michael Moore, seem to warrant the “journalism” mantle despite doing journalism “with attitude.” Others, like Oprah Winfrey’s former friend James Frey, too casually blur the lines between fact and fiction, claiming their hybrid work aims to provide “greater truths.” To this end, Frey may fall into the same category as the New York Times’ Jason Blair, USA Today’s Jack Kelley, and magazine journalist Stephen Glass, mainstream journalists one and all who egregiously fudged their way into serious violations of the public trust.) Precious few of the public communicators have engaged in formal journalism studies, and even fewer belong to professional journalism organizations or invoke traditional journalism ethics codes or principles. Are they journalists? Do they deserve any special privileges?

Unencumbered—nay, unchecked—by the mainstream media’s traditional gatekeeping mechanisms—a system with layers upons layers of editors—the new media practitioners are informational entrepreneurs. Some of them engage in socially significant reportage, while others impose half-baked and unchecked prejudices upon the citizenry. Their notions of accountability range from the nihilistic (“What do I do if I make a mistake? Fire myself? Let all subjective facts and opinions flow freely.”) to the pedantic (“Everybody in the blogosphere is accountable to everyone else in the blogosphere. Everything we do is transparent, while mainstream news sausage factories work in the dark.”) Some bloggers have drafted codes of blogging ethics, attempting to garner respect and credibility and separate themselves from an internet world peopled by “14-year-old girls imposing their bad poetry on the rest of us.” Others—perhaps the majority—look with disdain upon any efforts to professionalize their enterprises and regulate—even self-regulate—their behaviors and work products.

In short, it’s unwise to generalize about the new media. They appear in too many forms, and have too many agendas, too many diverse practitioners, and too many differences in accountability for us to stereotype them—let alone to determine how to regulate them, or to determine which among them deserve special privileges.

The Legal Domain. I’m way outside my comfort zone when I talk about the legal domain. But bear with me as I try to connect your arena of expertise to some of the ethical matters about which I have a tiny bit more confidence.

The argument about who deserves privileges used to be a simpler one—although it was never a no-brainer. Legislatures have struggled to define, and courts have struggled to interpret, “journalist” or “reporter.” Branzburg and other decisions suggest that all citizens are equally equipped and equally free to serve as newsgathering watchdogs. However, this “egalitarian model” contrasts with the “expert model” revealed in numerous other court cases and proposed by many legal scholars—a model holding that journalists are “uniquely qualified and clearly identified professionals who serve as agents of the public in the procurement and disseminations of news” (Ugland & Henserson).

Courts and legislatures seem somewhat befuddled about some key issues: To be a reporter do you have to work for a mainstream news medium? A daily medium? (Note that Time magazine wasn’t protected under Alabama’s shield law!) Do you have to be doing investigative reporting, or could weather/travel/fashion/food reporters qualify? Do you have to “intend” to do journalism/ reporting, to publish/broadcast your work product, to make money at it? Or could it be happenstance journalism? (As Ugland and Henderson describe the situation, Florida’s shield law says a journalist is “a person regularly engaged in [newsgathering] for gain or livelihood, who obtained the information sought while working as a salaried employee”; Washington D. C. requires that the person be employed by the news media; Indiana requires a person to be “an editorial or reportorial employee, who receives or has received income” for newsgathering; Delaware requires that a person be employed at least 20 hours per week before qualifying. Nebraska protects “any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network or cable television system”—a broad umbrella, yet one that doesn’t shield scholars, documentarians, bloggers, and many others.

I take some comfort in the “Free Flow of Information Act” working its way through the U.S. Senate Judiciary Committee. It would offer protection to sources and journalists alike. The bill by Senators Specter and Schumer would apply to journalists from traditional news outlets but also to some bloggers. In protecting sources it seems to be arguing that it is the needs of the public, and not the needs of elite journalists, that deserve protecting.

On the flip side, this bill, like so many statutes and court decisions, defines journalists, and in so doing, determines that some categories of information providers are professionals and some are not. Over and above the constitutional and pragmatic implications about licensing the “good professional,” the troublesome implication is that some journalists are ipso facto more ethical than others.

Conclusion—In my humble view, the issue of “who is a journalist, and who deserves privileges?” should not center on where one works, but on how one works. In saying this, I’m focusing on the moral or ethical domain, on issues of fundamental value and performance. I believe we should protect those who act as stewards of the public interest, in whatever media or for however much money they function. If they have inculcated professional ethics while eschewing sleazeball behaviors and violations of the public trust, they should have an easier time convincing legislators and jurors that they deserve the protective mantle.

All public communicators, of course, should be given their day in court. But in the longer run, the ones who claim special privileges should pass muster in the court of public opinion as well. A fully functioning democracy—especially democracy operating at warp speed—deserves no less.

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