The "Who Counts as Press" Question Comes to Court

UPDATED BELOW

A district court judge in Portland, Oregon, just ruled that a blogger was not a "journalist" and therefore was not entitled to the First Amendment media shield law protection afforded the press by New York Times v. Sullivan the Oregon state statute. (The case did not reach the First Amendment question, though it was certainly lurking in the background: see below.) The judge ruled that Crystal Cox was not entitled to the protection because of her lack of professional affiliation, and in the end, she was hit with $2.5 million in damages for defamation.

FEC Avoids Uncomfortable Questions in Approving Colbert's PAC

Colbert and attorney Trevor Potter at the FEC hearing

Today, the Federal Elections Commission approved Stephen Colbert's Super-PAC. A lot of the discussion surrounding this episode had to with what a rejection of his application would mean to Fox News and their horde of politician-TV personalities (Palin, Huckabee, etc.). I was more interested in the potential for an adjudication of who counts as "press" (partially because I figured this was an easy case). As I said before:

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....

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.

Reports of the Press Release's Death are Greatly Exaggerated

This is fascinating. I just saw today's This Week In Review, by the Nieman Journalism Lab at Harvard. (Warning: May prove addictive to media geeks.) It has a section about a debate concerning the death of two media forms: the RSS feed and the press release. I don't believe either are dead. I'm more interested in the press release though - I don't really care as much about the RSS feed. Mostly that's because as someone who looks for the RSS button whenever I find a new blog I should be reading, I think, whatever the flaws, it's here to stay. Dave Winer says the same here, and points out the one big flaw by comparison with Twitter (and one smaller one that's more of an annoyance than anything):

A Columnist Fills the Gap Left By the Ombudsman and Media Critic

Thank you to E.J. Dionne (who is neither Andrew Alexander, the Post's ombudsman nor Howard Kurtz, their resident so-called media critic) for writing in the Washington Post what needs to be said over and over again where more eyes can see it.

The mainstream media and the Obama administration must stop cowering before a right wing that has persistently forced its propaganda to be accepted as news by convincing traditional journalists that "fairness" requires treating extremist rants as "one side of the story." And there can be no more shilly-shallying about the fact that racial backlash politics is becoming an important component of the campaign against President Obama and against progressives in this year's election.

The Inherent Limits on Freedom of the Press

Ok, so I just saw a blog post that mirrors my views on the inherent limits on press freedom and the reasons for it exactly, so I thought I'd share. Stanford philosophy professor John Perry writes:

The philosophical basis for freedom of the press, especially in a (more or less) democratic state like our own, is that people are the ultimate decision makers, decisions are likely to be better if founded on truth than falsity, and truth is most likely to be available and widely believed with an unfettered press.

Basically, I don't believe an individualized right to free speech or free press are goods unto themselves. The query has to go further - why are they important? Why did the Framers think they were important? The answer is obvious - both free press and free speech are necessary to a working system of self-government. The press for truth, and speech so that all the best ideas are heard and debated. That's why the Court's ruling in Citizens United (and the near-equivalent view for the press giving publishers, including cable providers to some extent, the right to say anything they want) was so wrong. Free speech is an illusory right when someone follows you around with a 150dB megaphone. You can't simultaneously say that free speech and press are important and then give anyone the right to simply drown or crowd others out (a right that usually only materializes with the huge resources of a corporation). Because it destroys the forum for speech itself, the crowding/drowning out should be prohibited by the First Amendment, not protected by it.

"Both Sides" Journalism and the Role of Media's Subservience To Government

I'm a little late on this, but I wanted to mention something about the study that came out of Harvard's Kennedy School of Government a couple weeks ago, regarding newspapers' use of the word torture. Specifically, I want to use it to put in context my assertion that unfortunately, the potentially bad results of government funding of journalism are already here, with none of the benefits.

The study documents a "significant and sudden shift in how newspapers characterized waterboarding." Basically, in the last 100 years, the newspapers discussed waterboarding occasionally and unequivocally called it torture, right up until the government began asserting that it was not torture.Glenn Greenwald sums up the implications well:

We don't need a state-run media because our media outlets volunteer for the task: once the U.S. Government decrees that a technique is no longer torture, U.S. media outlets dutifully cease using the term. That compliant behavior makes overtly state-controlled media unnecessary.

What it also does is make the bogeyman specter of government control irrelevant to the discussion because for better or worse (obviously worse) it's already here.

Government Subsidies are a Part of the Future of Journalism, and That's Not a Bad Thing

Ready for a controversial statement that I fully believe? Here goes: Government subsidies and funding of journalism will be included in future news models in this very country, and I don't believe that's a bad thing. As far as whether it will happen, I just think it's pretty much a given, since there's just no other way the papers will be able to afford to keep making quality news. Advertising’s drying up; non-profit models just don't work because there's not enough money, unless the paper is beholden to a few very wealthy donors, which is also problematic.

Government funding raises a couple very interesting questions though. Why are we so viscerally opposed to it, and does it make sense to be? Is it worse than what we will, (or already do) have? Could it be better? (By the way, this post was inspired by the discussion in the comments section of Dan Kennedy's post berating a local paper from taking a rotating small business loan from the local government. The comments hash out a lot of the issues on all sides of this debate, and are quite interesting.)

A Sign of Improvement in Journalism?

A recent surge in fact-checking in the MSM turns out to be pretty popular. Who knew? The trend started with NYU Journalism Professor Jay Rosen's "simple fix," and was picked up first by ABC's Jake Tapper on This Week, then by the always inept CNN and Howard Kurtz that managed to take a good idea and apply journalistic "balance" to it. Here's Jay Rosen's timeline of the whole thing, including the ridiculous refusal by David Gregory, host of MSNBC's Meet The Press to adopt it, saying that viewers can fact-check "on their own terms," whatever that means. This prompted the creation of Meet The Facts, a website attempting to crowdsource the fact-checking that Gregory refuses to do, for whatever reason. (I apologize for for the link barrage on a new topic - I had a draft post about this a month ago and just realized I never posted it. This topic is important, however, and the links are well worth reading, particularly the timeline.)

Right around the time David Gregory said no, Colbert even jumped in on the action. (I linked it because embedding the video isn't working for some reason.)

Anyway, so the fact checking is catching on, and the AP is noticing its popularity. Amazingly, they've even noticed that Kurtz's version of "both sides lie equally," "balanced" fact-checking is not what people want.

Obama's Still Got It (Part I - The Good)

(updated below)

Yesterday, President Obama gave the commencement address at Michigan, and I immediately realized that a) I was basically the only law student that didn't see it (I was at a friend's wedding - congrats again Johnny and Jen!), b) it was worth the hours of waiting in line, and c) it was a speech that could have been designed just for me (I was told so by several friends). So I read through it, and I almost began tearing up and couldn't stop smiling, except in the points where I wanted to yell out that he's being a hypocrite. And again, this was just while I was reading (full text here). But I've also seen enough of his speeches that I could recreate the delivery in my own head. Anyway, given my varied and strong reactions to his address, I figured I'd write about the different parts. This post is incredibly long, so I'll write here about the good, and about the bad separately.

Saving CNN Should be About News, Not Business

(updated below)

Let's look at two different proposals for how CNN can and should fix itself.

A couple weeks ago, Ross Douthat wrote a column for the NYT about how to save CNN, that was fundamentally flawed. The basic problem with his column was that while he identified the core of CNN's problem: its vapid, empty version of non-partisan journalism that basically says nothing at all and is thus just boring, he proposes an inherently problematic solution, essentially merely calling on them to bring more "debate" into the news room.

Partisan News Trumps Pretty Graphics?

Bad news for CNN:

CNN continued what has become a precipitous decline in ratings for its prime-time programs in the first quarter of 2010, with its main hosts losing almost half their viewers in a year.
...
At the same time, Fox News, which had its biggest year in 2009, continues to add viewers. Greta Van Susteren’s show was up 25 percent from a year earlier. Bill O’Reilly, whose show commands the biggest audience in prime time with 3.65 million viewers, was up 28 percent, and Glenn Beck was up 50 percent from a year earlier.

I've actually often wondered whether the partisan news model or the "ooh shiny..." news model was worse at getting the information out - off-handedly, I'd guess the latter. I guess it's becoming clear which is worse as a business model, at least. I guess if you're not gonna get useful news either way, crazy wingnuts are more entertaining than pretty graphics. So yeah, CNN sucks.

Small Policy Choices in the Future of News

The future of news is a hot topic these days. One troubling trend, however, among those that oppose reform of the established media is to just sort of hand-wave and say, "oh the internet will take care of it all."

What these people have to realize is that policy choices made by the people who shape the internet will have huge consequences for the future of the internet, and probably none are quite as big as net neutrality.

Here's one smaller example:

The question is this. If Twitter is a news-delivery service, and I believe it is, what are the real dimensions of a nugget of news?

...

The actual number, the average [character] length of a Times "nugget-of-news" is this: 185

...

[T]he answer is fairly clear. 140 [characters] is not enough, not even for the average nugget. And to be able to hold the largest one, the max would have to be 250 or 300. And there would be no room for the link, even shortened, in that size nugget.

So the future of news seems to rely heavily on new technologies like twitter. I don't doubt for a second that that's true, and we're already seeing it. It's just important to understand that policy choices in the structure of these technologies, even as small as how many characters to allow per tweet, can have huge impacts on our future discourse.