Who is a “journalist?”

From the Fall 2009 issue of The News Media & The Law, page 4.

Defining a journalist and journalism is both elusive and problematic. As journalism undergoes a profound shift toward the electronic, it is difficult to figure out who is covered by the term — and crafting the definition too narrowly excludes certain speakers from the benefits afforded to journalists.

So why should we even try? Because defining “journalist” and “journalism” is often necessary to allow reporters to gather and publish news.

A repeat Freedom of Information Act requester will quickly go broke if she never gets the journalist’s fee benefit or waiver, which is provided for in every open records act, state and federal.

Reporting on a controversy that depends on confidential sources is much more difficult if there isn’t a solid legal ground for promising confidentiality, such as a court-recognized reporter’s privilege or a state shield law.

Statutory restrictions on speech, from campaign-finance rules to animal-cruelty laws, seek to ban certain types of speech or expression while avoiding unconstitutionality by exempting speech with serious journalistic value — one small step ahead of “the serious literary, artistic, political, or scientific value” test that exempts some expression from being labeled obscene.

But not all areas of the law differentiate journalists from others.

Libel law grants no special privileges to the news media. But there are better protections in the law for discussions of matters of public concern, and journalists have an easier time convincing a court that a statement or story is of public interest — after all, if it appeared in a newspaper, it must be newsworthy and of interest to the public, or so one would argue.

And questions of court access are really questions of public access to courts. It is the news media that push to keep courtrooms and legal documents open — the leading cases, from Press-Enterprise I and II to Richmond Newspapers, after all, contain newspaper company names — but the determination of whether a proceeding or document is open depends on whether the public has traditionally had access and what public interest would be served by allowing access.

The divide between areas of the law that distinguish journalists from others and the areas of the law that don’t can be bridged by recognizing journalism as a public-interest function, not necessarily a particular profession. We know there are important reasons why skilled, knowledgeable journalists are a benefit to society, but we have to recognize that those levels of skill are not necessary for the purpose of defining legal protections. This makes the case for a broad definition of journalism that relies not on the job status of the speaker or the method of communication, but on the purpose of the speech. Is it to inform the public, or is it to promote a cause or company? Is it to shed light on a meaningful controversy, or to win some other advantage? Serving the public interest is, after all, more important than simply looking at whether a journalist happens to write for a living.

But making that functional distinction too broad can render it meaningless. If all personal communications become an act of journalism, too many speakers will cynically claim the title of journalist to gain a benefit, evade coverage under a restrictive law, or keep themselves out of court, and the purpose of being a journalist will be lost.

Coming up with a function-based definition of journalism can work, as the following articles show. The Freedom of Information Act defines journalist broadly, but also provides the same benefits to any requester pursuing records in the public interest. In the current debate over a federal shield law, Congress seems to have settled on a function-based test, although many were pushing for a definition more closely linked to established print-and-broadcast journalism. And when it comes to examining entire categories of banned expression, the Supreme Court has grappled with the necessity of an exemption for works of serious journalistic value.

Of course, another problem with a legislative definition of journalism is that legislators then have the power to change the definition, based on bias, spite, or just a desire to control the definition.

This cover collection of stories is meant to ask the relevant questions and provide the necessary background for a bigger discussion that will continue in future issues. The look at how the question is handled in different areas of the law may provide fodder for arguing for one combined definition, or may encourage other ways of cross referencing the important aspects of journalism.

Everything about journalism is changing, but journalism is more necessary than ever. The question of who is a journalist — and even how to arrive at such a definition — will continue to evolve in the coming years.

— Gregg Leslie