Wednesday, October 26, 2005

Cornyn's Folly -- Hunter/Gatherer Journalists

Thanks to May it Please the Court and Lauren Gelman for being the first to speak out.

Senator John Cornyn (R-Texas) along with several others, are sponsoring the Free Flow of Information Act, a law that sets out some pretty detailed requirements that must be present before a court can compel disclosure of material from the media, or "covered person."

John Cornyn's interpretation of "covered person" doesn't include bloggers.

The bill's text clearly does, though, which begs the question of whether or not it will be changed. Certainly if Mr. Cornyn has his way, it will be.

I quoted Jay Rosen in a previous post, and I believe it's worth posting again:

"Freedom of the press belongs to those who own one, and blogging means practically anyone can own one. That is the Number One reason why weblogs matter."

What is it, really, about bloggers that makes so many people so nervous? Is it "Big Media" leading the charge? Is it that our elected officials are afraid of bloggers and what they can do?

Certainly not. The possibility for inaccuracy and bias that exists in the blogosphere exists in traditional media, as well. Just ask the New York Times. The simple fact of the matter is that bloggers are journalists, and they're not. Not really so simple, I know. I realize that there are bloggers who actively cover stories, hitting the streets with their cell-phones and laptops, but most of the blogosphere is a collection of editorializers, passively accepting reported news and commenting on it.

We're gatherers, not hunters.

The question is, should the hunters among us be considered journalists?

My answer is, absolutely. I seek no protection for myself, at least not right now, other than my freedom of speech. I consider myself a journalist only in so far as I am a "disseminator" of information, to a certain extent. I don't actively cover stories. My practice suffers enough from the small amount of time I spend editorializing. I'll certainly never (well, maybe never) have a confidential source whose identity I need to protect. But does that mean those gatherers like myself are doomed to sit in a journalistic limbo, forced to atone for our lack of editors, fact-checkers, and proofreaders by rolling over on our similarly situated hunter brethren?

I think not. Besides, hunters are hunters for a reason. I don't fancy my head on a virtual wall.

1 comment:

PG said...

I think you are right that the law should differentiate based on what one does, rather than where one is published. Though I despise Michelle Malkin, she's probably more of a journalist than Maureen Dowd, because Malkin hunts down information for the purpose of publishing it, and she publishes for the purpose of disseminating that information. Dowd, in contrast, free-associates what her friends tell her with what's happening in the news.

The fear is that if over-inclusive and especially if including bloggers, the law will allow anyone to dodge a subpoena to give information to the court, simply by being sure to post something about it online and then saying, "Whoops, I have to give confidentiality to my 'source.'"

For example, if I'm with an acquaintance when she makes a drug buy and am later called upon to testify, normally I have to testify. On the other hand, if I went home and wrote a blog post about the experience without including her name, that presumably would make me protected from having to give her name or testify, because I could honestly say that my friends definitely would not do illegal things around me if they thought I'd name them in a post about it. But I don't think I ought to be protected from having to disclose what happened while I was hanging with a friend. The difference would be if I were writing an investigative blog post about drugs in our city and specifically gave a promise of confidentiality to my friend in order to get her to let me witness the transaction so I could write about it. I think ex ante promises of confidentiality with regard to writings are important here: if I say to her after the transaction, "Hey, I want to write about this, is it OK as long as I don't use your name?" that doesn't deserve protection, because I have the information already. I don't need to give the promise of confidentiality in order to obtain the info.