Washington Lawyer

Activist Journalism: The Rise of Everyday Reporters

From Washington Lawyer, February 2011

By Thai Phi Le

assangeActivist journalism—it’s the new buzzword. People across the blogosphere, in newspaper columns and magazines, and on camera are discussing the emergence of this “new” crop of reporters who set aside traditional objectivity to let their opinionated voices be heard. “Journalists with an agenda” is a recent concept that is changing the media landscape, allegedly muddying the profession, and giving rise to a slew of First Amendment legal issues.

Current industry changes are making their own headlines. In July 2010, Roger Simon of Politico wrote a column lamenting the transformation in the profession, referencing the recent Journolist scandal. “We [journalists] loved what we did, and we did it with passion. We were proud. We felt—I am just going to go ahead and say it—honorable. There were wrongdoers. Fakers, plagiarists, those with private agendas who wished to slant the news… . Even if you were a columnist and allowed to publish your opinions, you were expected to be fair and accurate,” Simon wrote. “Somewhere along the way, things have gone terribly wrong.”

Journolist was an exclusive online forum for reporters, academics, and policy experts to discuss news and politics. Tucker Carlson, a conservative media personality and founder of the Web site The Daily Caller, and reporter Jonathan Strong unveiled e-mails from Journolist members that allegedly showed possible strategies to slant coverage in favor of President Barack Obama. On June 25, 2010, Journolist was shut down. In closing the forum, its founder Ezra Klein asserted that none of its members did anything unethical or wrong.

The debate raged on when former Washington Post writer Howard Kurtz devoted his August 2, 2010, column, “In Journalism’s Crossfire Culture, Everyone Gets Wounded,” to what he saw as the degradation of industry standards. “Media outlets, which once merely chronicled this era of hyper-partisanship, now seem to be both the purveyors and often the targets of ugly attacks,” he wrote. “Certain bloggers were once singled out as bomb throwers, but now just about everyone in the news racket is blogging or tweeting or trying to entice the gods of Web traffic—which is easier to do when you hit the hot buttons.”

As a result, however, bloggers and the like are shaping the important conversations across the country. Constant coverage of the Ground Zero mosque controversy by conservative online writers forced the story onto front-page news and drew support from public officials, including former U.S. House Speaker Newt Gingrich. Outrage swelled online over controversial remarks made by veteran White House reporter Helen Thomas and CNN news executive Eason Jordan in separate incidents, leading to Thomas’ abrupt retirement and Jordan’s resignation.

Michael Schudson, a professor at Columbia University Graduate School of Journalism and a historian of the press, warns against sweeping statements that biased reporting is only a relatively recent development. “I think it’s a mistake to imagine that we’re only now—thanks to Fox News—suffering from some terrible decline from a long-standing brilliant tradition,” he says. “We have to remember that the press in this country, in the 19th century, was almost exclusively partisan.”

In fact, the New-England Courant, founded in 1721 and one of the earliest newspapers in the United States, was considered politically unbalanced, as were the many other original colonial papers that followed. “We’ve always had extreme tendencies in media,” says David Hudson Jr., a scholar at the First Amendment Center. “You look at papers in the founding era. These papers were rabidly pro-Federalist or pro-Democratic Republican.”

So why is the debate heating up now if a look back at history reveals centuries of press partisanship?

Is Everyone a Journalist?
Activist journalism may appear to be a new-fangled idea because the growth of the Internet has given virtually everyone a voice, if they want to be heard.

“When I first started writing and being interested in press law, they used to ask, ‘Who is the press? Is it the publisher or is it the reporter?’ Today, ‘who is the press’ is a much larger question. Is it the bloggers? Is it anybody who posts a message on a Web site? Are they part of the media? Is everybody [the] media?” asks Jerome Barron, the Harold H. Greene Professor of Law at The George Washington University (GWU) Law School.

The answer is a lot harder to come up with than expected as the area between who is considered a journalist and who isn’t is quickly turning into various shades of gray.

“People were always able to say someone holding a microphone and standing in front of a camera is a journalist. If they’re engaged in something involving reporting . . . someone who works for a newspaper or magazine is a journalist,” says William Grueskin, dean of academic affairs at Columbia’s School of Journalism. “But obviously, now the barriers to entry to publishing have come down so far that making those definitions is very tricky.”

Unlike other professions like doctors or lawyers, reporters are not licensed and do not have to pass an exam to be called journalists. “In a sense, anybody at any given time could be practicing journalism,” says Tonda Rush, chief operating officer and director of public policy at the National Newspaper Association. “I think we are in a world of ‘I know it when I see it.’”

But there’s a lot to see these days. There are the traditional media—newspapers, magazines, radio, and TV stations—and then there are the bloggers, Facebookers, Twitterers, and Internet commenters.

“There’s a potential, through the social technologies that we engage in almost every day now, for people to quickly access tons of information, tons of opinions. Those with really good critical thinking skills and synthesizing skills can establish their own opinions and their own voice, and then quickly publish those thoughts back up to the Web,” says Justin Mass, senior learning technologist at Adobe Systems, Inc. “In that regard, anyone and everyone can be a journalist.”

Mass touches on a common thread among First Amendment and journalism industry experts—the idea that reporters these days are defined more by function. Is the person engaged in research? Is he or she interviewing? Does the person plan on gathering information about important issues to disseminate to the public? What these individuals do is more important than a formal title.

“It’s in the nature of our tradition, the First Amendment, that anyone who is relaying news is a journalist,” says Schudson. “We talk now about citizen journalists. In terms of full-time people paid to report news, that’s really a 19th-century development. I think the professionalization of journalism has been a good thing, but it’s never been exclusive and it shouldn’t be. But that means definitional problems get to be very messy.”

Legally defining who is considered a journalist raises sensitive constitutional questions because to include certain people in a protected class necessarily means to exclude everybody else, says Robert Corn-Revere, a partner at Davis Wright Tremaine LLP who specializes in First Amendment law and communications. “If the law circumscribes who is a journalist and, therefore, who is constitutionally protected, then you’ve given the government tremendous power to shape who can speak in an unfettered way and who can’t.”

Reporter Shield Laws
Leaving it undefined, however, presents a dilemma when determining who should receive reporter privileges under shield laws. Shield laws, which vary from state to state, protect journalists from having to reveal their sources.

“If you’re going to have a code, if you’re going to have a statute, you’re going to have to have some definition,” says Rush. “I don’t think that’s avoidable.”

According to the Reporters Committee for Freedom of the Press, the District of Columbia’s shield law defines news media as “newspapers, magazines, journals, press associations, news agencies, wire services, radio, television, or any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.” The statute states that reporters cannot be forced to testify about their sources if the source was contacted during official newsgathering business.

To compel testimony about news, a person must demonstrate with “clear and convincing evidence” that the information being sought is “relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena; [t]he news or information could not, with due diligence, be obtained by any alternative means; and [t]here is an overriding public interest in the disclosure.”

Currently, 37 states and the District have some form of shield law, but there is no federal statute. Proponents hope a federal law would iron out variations among state laws. While President Obama and U.S. Attorney General Eric Holder have spoken out in support of a federal shield law, the Senate shield bill—Free Flow of Information Act—has not made it to the Senate floor as of this writing, and will likely die with the current Congress.

News Brought to You by Bloggers
Even if a federal shield law were enacted, rapidly changing technology and the creation of more new media professionals could easily outdate any statute.

“We’re going to have to have a government that is agile and flexible enough to quickly expand the definition of existing statutes. The rate of change is going to happen faster than I think the legislation can keep up with. It’s going to have to end up in the courts at some point,” says Mass. “In the meantime, it’s certainly going to be this slippery slope, gray area where bloggers [and other new media types] who feel very strongly that they are journalists, but may not have a media affiliation at some larger level, may find themselves getting into a bit of trouble.”

Where exactly do bloggers and new media fit into the spectrum of journalism? It has become fairly accepted in recent years that bloggers can be considered journalists, but unlike their counterparts in print, it is not a given. In April 2010, PRWeek and PR Newswire released a survey that showed 52 percent of bloggers think of themselves as journalists, up from 33 percent the previous year.

People are also trending toward the Web for news. As newspaper readership continues to decline, bloggers are experiencing a large increase in readership—58 percent in 2004, according to a report by the Pew Internet and American Life Project.

“I wouldn’t say all bloggers are considered journalists,” says Barron, the GWU law professor. “I suppose we could say that all successful bloggers are journalists. They’re given press passes and so on. Huffington Post. Politico.”

In the article “Blogging,” Hudson, the First Amendment Center scholar, discussed the proposed legislation for a federal shield law in 2005 and the Senate Judiciary Committee’s difficulties in defining journalists. Bloggers then, as they do now, continue to challenge legislators who do not know how to categorize the growing media group. Hudson pointed specifically to a comment made by Sen. John Cornyn (R–Texas) during a hearing on the proposed law.

“At our last hearing, one of our witnesses described bloggers as the modern-day equivalent of the revolutionary pamphleteer who passed out news bulletins on the street corner,” Cornyn said. “However, the relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information.”

Speaking Behind a Closed Curtain
For Hudson, if bloggers meet a clear functionality standard, journalistic protections should apply to them, even if they are anonymous. Fred Brown, professor of journalism ethics at the University of Denver and a columnist at the Denver Post, disagrees.

“If you are anonymous, you shouldn’t qualify for any of the privileges or rights accorded to journalists. An element of being a journalist is telling people who you are, or at least letting people know your name for goodness sakes, so there can be a challenge to you if you said something wrong,” says Brown. “Anonymity is really sort of a cowardly way out.”

But Corn-Revere, the First Amendment expert at Davis Wright Tremaine, says the First Amendment historically protects anonymous speech. The Federalist Papers, essays written in favor of ratifying the U.S. Constitution, were published in three New York newspapers under the pseudonym “Publius.” “It has been seen in traditional First Amendment jurisprudence as a basic building block of protection for freedom of expression,” he says.

Corn-Revere acknowledges the apprehension people feel toward anonymous speech, particularly over issues such as national security. “A body of law has grown over the past decade or so of attempts to get the identities of people who post information online. I think that tension will continue between the protections we have in this country for anonymous speech and the desire by those who seek to impose accountability on seeking the identity of speakers,” he adds.

Among those cases is Apple v. Does. For a year and a half, Apple Computer, Inc. waged a legal battle against unnamed defendants in an attempt to unearth the sources of leaked information. Apple alleged that the anonymous individuals had brought information about the company’s unreleased new products to several Web sites.

In March 2005, Judge James P. Kleinberg of the Superior Court of Santa Clara County, California, ruled that Apple had, in fact, met the criteria needed to allow a subpoena to overrule the online publishers’ privileges to protect their sources. His decision was based on the notion that the information was considered “stolen property” and, therefore, its publication could be deemed unlawful.

Represented by the Electronic Frontier Foundation, the Web publishers soon received support from more than 20 news sites and organizations, which filed a petition appealing the decision. Following another hearing, the California Court of Appeal unanimously ruled in May 2006 that the publishers and their sources were protected by the state’s shield laws.

Two often-cited U.S. Supreme Court cases in regards to anonymous communications are Talley v. California (1960) and McIntyre v. Ohio Elections Commission (1995). At the heart of the Talley case was the question of the legality of a Los Angeles ordinance forbidding anonymous leafleting. Similarly, in McIntyre the Court considered whether the government had the right to ban campaign materials if the author was not identified. In both cases, the Court ruled in favor of anonymous speech.

“Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment,” Justice John Paul Stevens said in delivering the majority opinion in McIntyre. “Protections for anonymous speech are vital to democratic discourse…. Anonymity is a shield from the tyranny of the majority.”

Crossing the Line for Conflict
While shielded under the umbrella of First Amendment rights, ethically reporters should attempt to minimize harm while carrying out their duties, says Brown. Two key questions for reporters to ask, according to Brown, are “Who gets hurt if we tell this story and does the benefit to the public of knowing the truth outweigh the harm?”

Many argue that journalistic standards are quickly falling by the wayside as a conflict-oriented media culture takes hold. In his “Journalism’s Crossfire Culture” column, Kurtz railed against the new media environment.

“The nastiness index keeps on rising, and all of us are getting sullied in the process,” Kurtz wrote. He cited a statement made by New York Times columnist David Brooks during the July 25, 2010, edition of Meet the Press that news is now often used as a weapon. Said Brooks, “A different sort of media, squabble culture, has come up on the left and the right… . They build audience by destroying other people.”

Brown agrees that over the past few years, some journalists try to create controversy more than they did before, often in the name of “activism.” The Shirley Sherrod incident is a recent example of this tactic. Blogger Andrew Breitbart posted an excerpt of a speech by Sherrod, who was then the Georgia state director of rural development for the U.S. Department of Agriculture, in which she allegedly made racist remarks.

Numerous media organizations immediately picked up the story and, within hours, Sherrod was forced to resign. Only after a review of the entire video and a statement by the family she was referencing in the story did people realize that what Breitbart had posted was taken out of context. Bill O’Reilly of Fox News later apologized for not doing the legwork to verify the validity of Breitbart’s claims. By then, the damage had been done.

Sherrod’s story illustrates a common problem in journalism. When do journalists cross the line of freedom of expression and enter into potential area of libel or slander? Following the incident, Sherrod said she was considering filing a lawsuit against Breitbart, but she has yet to do so.

Even in her case, winning a libel suit can be very difficult, says Hudson. The burden of proof is fairly high and the lawsuit can be very costly. “There are a litany of privileges and defenses in defamation. Particularly, when you’re speaking about a public official or a public figure, defamation cases are hard to prove.”

If the plaintiff is a public figure or official, he or she must prove that the defendant acted with actual malice. For private citizens, the burden is lower. The plaintiff only has to establish that the defendant acted negligently.

Armed with clear and convincing evidence, the party aiming to sue a journalist can run into insurmountable barriers if the reporter is a blogger. “It’s difficult to sue them for libel. That is true, although there have been some successful cases,” says Barron of GWU Law School. “Often, though, the blogger has no resources so it’s pointless to sue [him or her].”

Without the advantage of a team of editors or publishers to review bloggers’ work, is there a potential for more libel suits?

“The Internet has amplified all forms of speech—the good, the bad, and the ugly. It’s certainly true that it’s amplified the amount of defamation that occurs in this world,” according to Hudson.

But while it appears that bloggers can go unchecked, the online community often holds them accountable for what they write, says Mass, who specializes in technology-enabled learning solutions at Adobe. “The social Web is really the largest experiment in the peer-reviewed concept. They will be the judge and jury,” he says. “If random X, Y, Z blogger has [defamed] you in some way, but that person’s voice is in no way respected by your social community of experts—your subject matter network experts—then I don’t see it as a big deal. They’re going to say, ‘This is totally unfounded based on everything else this person has done.’”

While blogging and other new media may have created a situation where a lot of possibly defamatory statements can be posted instantly without editorial review, the Internet also has helped alleviate the problem by facilitating immediate retractions. Sherrod, for instance, was receiving apologies two days after being forced to resign.

“I actually think that the transparency that comes with the digital world may reduce the amount of libel and defamation suits because … it enables you to correct errors much more quickly and … it makes the process of doing it much more transparent,” says Grueskin of Columbia’s School of Journalism.

Grueskin’s theory is supported by the fact that as of October 2010, The New York Times faced zero libel suits for the first time in decades. Overall, the number of libel, privacy, and related suits has dropped dramatically, with only nine in 2009, according to the Media Law Resource Center.

Rush, the director of public policy at the National Newspaper Association, also believes that the claims rate in libel cases has decreased following the increase in blog readership and the changes media has made to keep up with interactive online communities. “People don’t have to go to a plaintiff attorney to sue somebody for libel. If they’ve got something to say, they can say it in the [comments section of a] newspaper,” she says.

Censorship by the Masses
Unlike reporter shields, the medium in which the speech appears is critical to the defamation claim. “Now there are two sets of rules for publishers who operate in the Internet world and can claim the Communications Decency Act immunity so they can permit robust public commentary,” says Rush. “But they’ve got to remember that the minute it shifts to the printed environment, there’s a different set of ground rules. It becomes their own content.” By owning the content, print publishers are more vulnerable to libel suits.

In regulating online speech, however, the Supreme Court in Reno v. ACLU (1997) has ruled that Internet commentary should receive the highest level of First Amendment protection. That does not imply that the government has no ability to attempt to regulate it, something many First Amendment champions fear. “The Internet is the greatest unregulated medium that the world has ever seen,” says Barron. “I would like to keep it that way.”

That may prove difficult as most governments have a long history of reacting to new media forms by seeking to regulate and restrict them, according to Corn-Revere. “Can you imagine what the Internet would look like if it had been the product of a rulemaking proceeding by the [Federal Communications Commission]? We’d still be waiting to see it, and when we [do see it], the rules governing it would be thicker than the New York phone book. The Internet is a free and open medium because it caught the government unawares.”

Mass says that one of the interesting aspects of the open Internet is that it may not necessarily be the government seeking to inhibit speech, but the users themselves. On a weekly basis, more people vow to log off of Facebook to protest alleged privacy violations. Boycotts of certain Web sites are organized against publishers who make unpopular statements, or simply statements that oppose one group’s opinion.

“You see companies like Facebook and Twitter, for example, [that] are nongovernmental organizations shutting down the profiles of Operation Payback. Those are interesting statements and governance statements—again, peer-reviewed social Web statements,” says Mass. (Operation Payback is a group whose aim is to attack opponents of Internet piracy. Its most recent work was committed in support of WikiLeaks. The group hacked into the sites of companies, including MasterCard, Visa, and PayPal, that stopped donations to or refused to continue working with WikiLeaks.)

It’s censorship by the masses, which may help keep the Internet unregulated. “We’ve all come to love this social Web and its openness. We participate in our social networks online and our Facebook groups and we learn so much,” says Mass. “Hopefully, the openness is not in jeopardy.”

But with more freedom to say anything and more ability to post information instantly comes more fear that may be created within various governments around the world. “To a certain extent, you could say we’ve already seen increases in attempts to censor speech on the Web. But I don’t see this as something that is either going to be won or lost in a single case or a series of cases. It will be an ongoing process,” says Corn-Revere. “As more speech exists and more speech is out there, there will be the potential for more efforts to suppress that speech, whether in the United States or on a global basis since the Internet is a global medium.”

Whistle-blowing Web site WikiLeaks has found itself in the middle of such firestorm.

WikiLeaks Versus Media Versus National Security
The release of thousands of documents by WikiLeaks places all the quandaries about journalism in one box. Is WikiLeaks part of the activist journalism movement? Should it even be considered journalism? Should the Web site’s founder, Julian Assange, be forced to unveil his anonymous source? Can he be prosecuted for publishing classified information? Also tossed into the mix is the potential threat to U.S. national security.

In December 2010, Ray McGovern, a former analyst for the Central Intelligence Agency, spoke to CNN’s Don Lemon on whether Assange was acting as a journalist. “The function of a journalist is to record the actions and behavior of those in power and make it possible for the public to know what’s going on,” he stated on the program. By that definition, McGovern said Assange is a journalist.

While Schudson agrees that Assange was performing a journalistic function, he says the matter is not black and white. “WikiLeaks itself released a database. It didn’t craft stories out of that. What it provided was a set of raw data, which in the normal journalistic run of things, that’s just the beginning,” he says. “It’s hard to think of precedents for this. Both the facilities of the Internet and the globalization of news and information have really changed the dimensions of what journalism is and can be, and [have] shaken our informal understandings of where the boundary lines can be drawn.”

“I don’t consider it journalism,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “I consider it to be information dissemination that is covered by the First Amendment. The First Amendment doesn’t say anything about only applying it to journalists. I think there is a distinction to be drawn between dumping data and what it is that journalists do.”

Jeffrey Smith, a partner at Arnold & Porter LLP and head of the firm’s national and homeland security practice, takes it a step further, calling what WikiLleaks did “outrageous” and a possible criminal violation. Just because someone has the ability to post information immediately does not mean that person should, he says.

“The responsible journalists are responsible, and they understand harm can result from leaks and they behave responsibly. WikiLeaks and others are not responsible,” says Smith. “Some standards, it seems to me, need to emerge. But in an age where everybody can publish, it just becomes enormously much more difficult. Legitimate government secrets are at peril.”

And the issue of national security throws a major wrench in First Amendment protections, with governments claiming state secrets privilege to withhold what may possibly be simply embarrassing information. Says Corn-Revere, “You’d have to sort out a lot of [the diplomatic cables released by WikiLeaks for] what really is a national security issue and what is something that the government would prefer to keep in the shadows.”

By attempting to suppress WikiLeaks, is the U.S. government trying to censor speech and threatening people’s right to freedom of expression?

“On the whole, in order to preserve democracy, you’re going to have to tolerate a certain level of irresponsibility and even vicious speech,” says Schudson. “We don’t like it. We don’t condone it, but you would want to be extremely cautious about regulation or legislation that would impose on that freedom.”

The tension between transparency and national security is one that has existed for hundreds of years, notes Dalglish. “The only thing that is really different about the debate right now is the speed and the capacity that has been increased due to technology.”

Journalism 2.0
In the end, it all comes back to technology. The journalism field is changing, and it’s changing fast. New media is forcing traditional media to reevaluate how it does its job.

“It has definitely affected the news cycle because you’re no longer beholden to the industrial production cycle of a newspaper or even a television program that comes on at 6 p.m.,” says Grueskin. Journalists no longer hold on to scoops for 24 or 48 hours.

Traditional media faces other problems as it tries to keep pace with the Internet’s instant communication. Sometimes journalists receive a tip and run with it before verifying its validity. With rapid-fire stories, the editorial process—from story pitching to publication (online or print)—is often reduced to mere hours. Corrections are commonplace. Part of the blame can be placed on the shrinking newsroom, but fingers can also be pointed at the rise of online journalists who, with a few keystrokes, can send an article out to the ether long before a story can appear in a newspaper. To keep up, newspapers with online versions are posting stories regularly throughout the day, at a much faster pace than in decades past.

That is not to say that the advent of online media is a negative thing. In fact, most agree that on the whole the Internet has been a boon to the journalism industry. “Technology has been extremely disruptive, but ultimately disruptive for the right reasons. I think that Journalism 2.0, or whatever they call it, is going to have to be willing to learn about best practices around what is happening in the blogosphere,” says Mass.

Through new technology, reporters can hear from their audience and know which stories hit a chord with their readers. Blogs are great sources of research information and leads. In fact, new media journalists are often the news breakers. Twitter user Janis Krums was the first to post pictures of the January 2009 Hudson River plane crash. In 2004 bloggers from the Web site Power Line played a key role in discrediting documents that CBS News used to question President George W. Bush’s Air National Guard service.

“It has brought out some interesting voices into journalism who weren’t there before. It’s weeded out some of the bad habits that I think journalists used to engage in. I think it’s made journalism more transparent,” says Grueskin. And transparency is what all journalists fight for and what the First Amendment protects.

Whether leaning left or right or walking a straight, narrow, and unbiased path, the Internet has allowed many new and credible citizen journalists to express their opinions, to question authority, or to praise the latest global developments. “The First Amendment itself is our blueprint for personal liberty. The press has a long, valued, and historic role as the Fourth Estate and as a check upon the official branches of government,” says Hudson. “I believe in that higher purpose.”

D.C. Bar staff writer Thai Phi Le wrote about proposals to establish a national DNA arrest database to fight crime in the November 2010 issue of Washington Lawyer.