As a young journalist, I remember listening with interest to colleagues recounting long-ago fights for the right to bring cameras into the court room. And while that battle hasn't been won everywhere, it appears nevertheless to be giving way to a new wave of concerns.
As blogger Arthur Bright lays out below, the push is on now for bloggers to not only attend trials but to report them live, blow by blow, on their blogs.This isn't entirely new -- bloggers covered the Scooter Libby trial, and by many accounts did a better job than the traditional media, at least in the daily coverage.
Nevertheless, the performance of bloggers at that trial and others have left some media observers cold, leaving Bright to ask the question, "Is it journalism?"
As a journalist who has worked as a reporter and editor for tiny weekly papers, big-city dailies and enormous international newsweeklies -- and along the way did my share of blogging, too -- I'd like to say right away that of course it's journalism. A blogger who writes quick sentences about news as it unfolds is operating as a journalist just as surely as Dan Rather and the other three big anchors were acting as journalists when they collectively held the nation's hands in the wake of 9/11 -- despite the fact that for long minutes of their coverage there wasn't anything new to report.
The better question to ask is whether blogging is good journalism. And the answer to that will be as wildly varied as it would be if we were asking if a small-town weekly is good journalism -- some is, lots isn't. (Full disclosure: with cutbacks at the big-city dailies, the answers are increasingly uncertain there, too.)
The question ought to be centered around performance, not format. Read, for instance, the WSJ Law Blog, or SCOTUSBLOG.com and I'd challenge you to conclude those writers aren't performing regular acts of journalism -- and often, good journalism at that.
It's no surprise that we get caught up in the fight over whether bloggers are really journalists or not. Ever since the press was singled out in the Constitution, we've been fighting over what makes someone a journalist.
But the issue keeps coming back, usually thanks to technology. Professor Anthony L. Fargo at Indiana University surveyed the problem when reporting on efforts to pass strengthened shield laws for journalists in 2006.
This may prove to be the toughest part of the bill to draft. Already, the Internet has revolutionized the ways both the media and individuals communicate with the public and each other. The law has not yet caught up with the changes. A key question will be whether bloggers should be covered by a privilege. Web logs, or blogs, first began to appear in 1997 and now include a wide variety of content, from multi-user online magazines to personal diaries of individuals. Blogs are devoted to a wide range of topics, including politics, law and journalism. In fact, bloggers are credited with pointing out flaws in a CBS News story about President Bush's military service that led the network to retract the story in 2004. Already, bloggers who published proprietary information from Apple Computer about products Apple was about to introduce have sought a protective order to avoid being subpoenaed by Apple as it seeks to learn who gave away its trade secrets. A trial-court judge in California sidestepped the question of whether the bloggers could seek protection under the journalist's shield law in that state by finding that the shield law would not protect anyone who broke the trade-secrets law, including journalists. But the question of whether bloggers are journalists will not go away. Anthony L. Fargo, "Analyzing Federal Shield Law Proposals: What Congress Can Learn from the States," 11 Comm. L. & Pol'y 35 (2006).
The courts themselves have been reluctant to define a journalist -- or more to the point, have been often reluctant to extend shield protections because they feared they would inevitably lead to just these kinds of questions about definitions. As Clay Calvert wrote in the Dickinson Law Review ten years ago, the Supreme Court majority stopped short in the Branzburg case for just that reason. He pointed to Justice Byron White's language for support:
We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Branzburg v. Hayes, 408 U.S. 665 (1972)
This mini-screed in defence of bloggers as journalists can't obscure the tough questions that arise. After all, every four years at the national conventions, as at every big trial, and even the White House press gallery or the Legislative galleries in statehouses across the land -- folks making decisions about who gets press credentials and who don't will be asking themselves who, really, is a journalist.
My hope is that as these questions get asked, and answered, that judges and others will work toward a test that relies less on the format and more on the quality of the content when issuing those credentials.
One can immediately see the problems: What criteria make sense? Readership or circulation? What about the smaller pubs with histories of excellence? Quality sounds like a nice barometer, but who decides? And how to keep the bias about the content itself from influencing one's estimation of its worth?
These questions won't be easily answered, and plenty of law scholars and others are working on regimes that could work in spite of all difficulties. I'll leave it to them to find the answers, but let's hope we don't rule out all bloggers from the start. We'd lose a lot of valuable journalism.