5.17.2011

Who Counts as the Press for Purposes of the Law?

Colbert pumps his fist after filing with the FEC
On Friday, Stephen Colbert went to the Federal Elections Commission to file for a "media exemption," allowing him to use Comedy Central's airtime to promote his (Super-)PAC. The Politico article I linked quotes a lawyer at campaign finance center, saying this could trigger a sweeping change with respect to corporate donations. He may be right, though I'm not so sure how many people besides Jon Stewart and Stephen Colbert straddle that media-entertainment divide and would exploit this for electoral purposes. However, I'm less interested in that than a related question: Who counts as the press for First Amendment purposes? And a follow up: Is that actually even the right question? It's been clear for some time due to the proliferation of blogging and "random acts of journalism" that law would have to address this question. Colbert may force the issue into a court.

So, who counts? Many people (particularly professional journalists) argue that journalism is defined as a profession, and therefore people who have had training, either in a newsroom or j-school count and all others do not. But I wonder if that's not defining it too narrowly, both in a practical and legal sense. (Incidentally, the comment section of this post has a great discussion of the journalism-as-profession idea.) If a layperson attends City Council meetings regularly and blogs about them or posts clips on youtube, is he not providing the services of a journalist? Should he not have the same legal protections as a journalist, because he's actually an engineer in his day job? That doesn't really make sense to me. There is the issue of journalistic ethics that the professionals sometimes lean on in this argument, but I refer you to the "blogger ethics panel" joke for a response to that - basically, there's no indication that professional journalists are in fact more ethical. The First Amendment's press guarantee is about getting information out, so that's what matters. Not to mention the fact that the clause long predates the very idea of a journalism profession, which only dates back to the 1920s or so. To the extent that journalism is a profession only, then, we have to have a legal distinction between a "journalist" and "press" or "media," where the law is interesting in the latter. Therefore, as far as the law is concerned (the point of this post), this is either not the right answer or it's a meaningless distinction. Either way, for the rest of this post I refer to "the press."

Onto the legal question: Should Colbert get the "media exemption" that is meant for the press? I don't see a principled way that he does not. Clearly, the case is clearer for Jon Stewart - despite his protestations, he's basically a news man that mostly reports on the media itself. In fact, he's the most trusted news man in America. Colbert, it can be argued, is more pure satire. However, the law has always recognized that satire is a form of criticism, and thus news - hence why it is the paradigmatic example of a "fair use" copyright exception required by the First Amendment. Also, wouldn't it just seem odd to draw the line between Colbert and Stewart given how similar their shows are?

Ok, so Colbert gets the media exemption. But then (and I think this is what worries the above-referenced campaign finance lawyer), where does it end? Is this blog the press? Most of what we do is analysis and commentary, rather than "reporting" per se. But would the Editorial staff of the New York Times not be press? That's seems unlikely. Also, we do some reporting, for sure. I reported on the Michigan Law walkout and Jacob regularly reports on the racial disparity in job numbers. Ok, so we're probably entitled to some consideration as press, right? What about a blog of original poetry that occasionally interprets old dusty poetry tomes from her local library? You get the point. Maybe at some point, you just say "enough is enough" but that point is somewhat arbitrary, and for that matter, maybe no point is right.

Thus, we answer the followup question in the negative. Because there is no principled way to determine whether a person or entity is "press," asking who counts is the wrong approach. What the law should do is recognize that being "press" is an action. As Jay Rosen has put it: "The most basic act of journalism, by no means limited to journalists, is when someone says to us, 'I was there, you weren’t, let me tell you about it.'" Or alternatively, "I read this document, you didn't, let me tell you about it." If we think about it, protecting that - information dissemination - is the point of the press clause. Commentary, opinion, and analysis are all very important to protect as well, but they seem to fall within the purview of the speech clause.

The Supreme Court has not, as of yet, ever made an overt distinction between the press and speech clauses. On the other hand, the law does claim to make distinctions for the "press" or "media." For example, take the FEC exemption Colbert is exploiting or New York Times v. Sullivan's libel immunity for the press with respect to public figures. The late Professor Ed Baker argued in an article that all sorts of distinctions show up under the surface. For example, the law does not give media organizations as full protections as citizens, but does not treat them as regular corporations either (see the FEC). (Of course, because he wrote this article a few years before Citizens United said corporations are people for First Amendment purposes, that particular example might be moot). I think a lot of the ambiguity in current law is due the problem that I illustrate here. Once you separate the clauses, you have to think about the differences between reporting and speech, but for the current state of the law, that means press entities and speakers, which are indistinguishable in a principled way.

Soon, law is going to have to address this issue, whether it be because of Colbert, Wikileaks, or maybe in a libel suit that comes out of a blog. (I saw an article at CNN today that Rebecca Black was pregnant, but it has since been deleted - maybe she has a libel action against one of the thousand blogs repeating the claim or the twitter feed they sourced it from? Would Sullivan bar such a suit?) I think there is a right way of thinking about it, but we have to so fundamentally rethink this aspect of the First Amendment that I doubt we get there any time soon.

UPDATE: Well, here's a libel suit coming out of a blog. Unfortunately (though fortunately for the blogger), this is going to get thrown out on appeal, not because of Sullivan but because the jury found the blogger said nothing untrue. Oh, well.