Sample text for We're all journalists now : the transformation of the press and reshaping of the law in the Internet age / Scott Gant.

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Chapter One: We're All Journalists Now

The pantheon of modern American journalists is occupied by familiar names, like Bob Woodward and Carl Bernstein, Walter Cronkite, Mike Wallace, Rush Limbaugh, Bill O'Reilly. Wait a minute...Rush Limbaugh? Bill O'Reilly? Yes, according to a poll conducted in 2005, 40 percent of respondents identified Bill O'Reilly as a journalist, while only 30 percent said the same of Bob Woodward -- slightly more than Rush Limbaugh's 27 percent.

Perhaps these results should not be surprising. After all, what is a journalist? What differentiates journalists from other people disseminating ideas and information to the public? Today, the answer is hardly self-evident, and depends very much on whom you ask.

The most recent edition of the New Oxford American Dictionary, published in 2005, defines journalism as the "activity or profession of writing for newspapers or magazines or of broadcasting news on radio or television." The focus on these four specific vehicles for communication suggests the dictionary is somewhat behind the times, but it raises broader questions about whether limiting the concept of journalism to certain media makes any sense. Why should we include broadcast television, but exclude a DVD of a documentary watched on the same television monitor? Why should newspapers and magazines qualify, but not books?

The dictionary's definition also does not get us far, since it is hardly clear what qualifies as "news." What about editorials and opinion pieces? If they do not qualify as journalism, why not? If they do, then what about opinions expressed in pamphlets, in newsletters, or on Web sites?

Does whether someone is considered a journalist depend on where his or her words are published? On whether he gets paid? On whether she offers only "objective" facts or also supplies her own analysis and ideas?

It was not long ago that the boundaries between journalists and the rest of us seemed relatively clear. Those who worked for established "news organizations" were journalists; everyone else was not. In the view of most, you knew the press when you saw it.

Those days are gone. The lines distinguishing professional journalists from other people who disseminate information, ideas, and opinions to a wide audience have been blurred, perhaps beyond recognition, by forces both inside and outside the media themselves. Whatever the causes, it is harder than ever to tell who is a journalist.

The implications of this predicament are important. The question arises routinely in American courtrooms and legislatures, and at other government institutions, because there are many circumstances where those deemed "journalists" are afforded rights and privileges not available to their fellow citizens.

As with many areas of our lives, the legal system plays a central role in determining how information is collected and disseminated; who gets access to information, and when, and how; and whether someone has the right to keep information to himself, or may be compelled to divulge it. A mixture of provisions in the federal and state constitutions, statutes, regulations, and court decisions serves as the rulebook for how we communicate as a society. Unfortunately, when it comes to figuring out who is a journalist, and whether professional journalists are entitled to rights and privileges beyond those enjoyed by others, the rulebook is a mess.

But the problem extends beyond mere confusion. Although the federal courts have not (at least so far) interpreted the Constitution as distinguishing between professional or institutional journalists and other citizens, many government officials (including some judges) nonetheless adhere to the idea that traditional journalists should be afforded rights and privileges not available to others -- an idea championed by most established media organizations and many professional journalists.

For example, the District of Columbia and virtually every state have, through statutes or court decisions, established some variety of "privilege" for journalists, often referred to as a "shield law." Although the contours of the privilege vary by jurisdiction, in general they exempt those identified as journalists from having to disclose information they would be forced to reveal were they ordinary citizens -- such as the identity of a source.

Congress has yet to enact a federal shield law. It is currently considering whether to do so, prompted in part by the criminal investigation led by Department of Justice special counsel Patrick Fitzgerald, arising from the well-publicized "outing" of then-CIA operative Valerie Plame Wilson, in which several reporters were compelled to identify their sources to prosecutors because of the absence of such a law. Among those reporters was the New York Times's Judith Miller, who spent eighty-five days in prison for her refusal.

Yet even without a federal shield law, the national government has scores of rules and regulations that favor professional journalists over others. These include: Department of Justice guidelines that impose higher standards for subpoenaing "members of the news media" than other citizens; federal regulations that limit or prohibit travel to certain foreign countries (such as Iraq) but exempt "recognized newsgathering organizations"; and even the Supreme Court's own rules that for years permitted no audience members other than journalists credentialed by the Court to take notes during oral argument.

Although many thoughtful observers embrace the view that professional journalists should be routinely afforded rights and privileges unavailable to others, I believe it is misguided. The circumstances in which it is necessary and justifiable to extend preferential treatment only to them are few. We should no longer accept the routine extension of special perks and protections to professional journalists that are denied to others seeking to engage in essentially the same activities. The First Amendment is for all of us -- and not just as passive recipients of what the institutional press has to offer.

"Freedom of the press is guaranteed only to those who own one," remarked A. J. Liebling, the acclaimed New Yorker writer, many decades ago. Yet with the advent of the Internet and the World Wide Web, Liebling's otherwise astute observation seems profoundly dated. Inexpensive and powerful personal computers and software now enable almost everyone to easily share information and opinions with a global audience.

These technological advances are converging with a series of social and economic forces to transform journalism. This transformation should help bring into focus a reality we somehow lost sight of -- that journalism is an endeavor, not a job title; it is defined by activity, not by how one makes a living, or the quality of one's work. Although we are not all engaged in the practice of journalism, any one of us can be if we want to. In that respect, we're all journalists now.

Journalism in Transition

Journalism is in flux. Most newspapers and magazines face dwindling readership and the loss of advertisers (including highly profitable classified advertisements) as they compete with electronic publications and other sources of information and entertainment. Television news similarly struggles for viewers and for its self-identity, in a largely unsuccessful pursuit of ratings and profits.

At the same time, journalists are confronting a spate of high-profile efforts to compel the disclosure of confidential sources -- displacing the threat of libel lawsuits as the main legal preoccupation of many news organizations. For instance, in 2006, New York Times reporters were forced to provide prosecutors probing the leak of information related to an investigation of two Islamic charities with their phone records. Around the same time, two San Francisco Chronicle reporters were held in contempt of court and ordered to spend up to 18 months in jail for failing to reveal who provided them with secret grand jury testimony about alleged steroid use by a number of professional athletes (the reporters' jail sentences were suspended while they appealed, and later lifted when, during the appeals process, their apparent source--whom they still will not identify--pleaded guilty to several federal offenses related to leaking the grand jury testimony).

Meanwhile, the investigation into the disclosure of Valerie Plame's work for the CIA also led to the indictment (and subsequent conviction) of Vice President Cheney's former chief of staff, Scooter Libby, on charges of perjury and obstruction of justice. Not only were prosecutors able to obtain confidential information from reporters during their investigation of the revelation about Plame, but the subsequent trial of Libby resulted in the forced disclosure of information by journalists to Libby's defense team, and ultimately to the appearance of ten journalists as witnesses during the trial itself.

But the recent wave of subpoenas is not limited to high-profile cases or news organizations in major media markets. A reporter at the Wilkes-Barre Times Leader in Pennsylvania received at least three subpoenas seeking information about his interviews with a murder suspect. In Rhode Island, a judge refused to nullify a subpoena issued to a reporter from the Westerly Sun, a small newspaper serving Rhode Island and southeast Connecticut. In Mankato, Minnesota, a judge ordered a reporter from that city's Free Press to turn over his notes from a phone interview conducted with a man in the midst of a standoff with local police, which ended when the man apparently took his own life.

Nor are these efforts limited to criminal proceedings. It appears that in an increasing number of civil lawsuits (which do not involve alleged violations of criminal laws) courts are enforcing requests by private parties to compel the disclosure by journalists of information relevant to the case. One high-profile example is the lawsuit filed by former government scientist Steven Hatfill against the New York Times and its columnist Nicholas Kristof, in which Hatfill alleged he was defamed in several Kristof columns examining who might be responsible for a series of lethal anthrax attacks in late 2001. After the court in that case ordered the Times to identify Kristof's sources for the columns, it named some (who apparently released Kristof from his confidentiality pledge) but refused to identify others, leading the court to preclude the Times from using information provided by those unidentified sources when defending itself at trial. The court, however, subsequently ruled in favor of the Times and dismissed the case before submitting it to a jury -- a ruling Hatfill is appealing.

Another well-publicized recent example is a lawsuit by Wen Ho Lee, a former Department of Energy scientist, investigated on suspicion of spying for China (an offense with which he ultimately was not charged), who filed a claim against the government under a statute called the Privacy Act, based on the alleged leaking of his confidential personal information by the agency. Lee sought the testimony of several journalists who had written stories about him, in an effort to learn who in the government might have provided them with information.

Efforts by the journalists to convince two courts that they should not have to reveal the information sought by Lee were unsuccessful, and they were held in contempt for their refusal. The journalists -- and the news organizations for which they worked -- asked the Supreme Court of the United States to hear their case. While that request was pending (the Court is not required to hear all of the cases in which review is sought), Lee's lawsuit was settled on remarkable terms. The government agreed to pay $895,000, with the proviso that the money not go to Lee himself -- it could be used only to pay his attorneys, for litigation expenses, and for taxes owed on the settlement funds. In addition, to the astonishment of almost everyone, as part of the deal under which Lee would drop his case, five media organizations whose reporters were being pursued as witnesses agreed to pay him $750,000. The organizations -- ABC News, the Associated Press, the Los Angeles Times, the New York Times, and the Washington Post -- released a joint statement explaining that they reluctantly paid the money to protect their confidential sources and shield their reporters from possible imprisonment. CNN, which had also covered the Lee story and whose reporter was targeted as a witness, refused to participate in the settlement, stating that "we had a philosophical disagreement over whether it was appropriate to pay money to Wen Ho Lee or anyone to get out from under a subpoena."

The payment by media organizations to settle a case in which they were not defendants appears unprecedented -- and stirred debate within journalism circles. It also reflects growing concern among traditional news organizations that they are losing standing with the public and with the judiciary. Polls consistently reflect public dissatisfaction with the press. Recent rejections of media organizations' claims that they should be exempt from laws applicable to other citizens have left the press increasingly worried about how they will fare in the courts. "We've seen greater skepticism on the part of the judiciary," which doesn't "seem to see the role of the press as uniquely contributing to our democratic process," acknowledges Jane Kirtley, the longtime director of the Reporters Committee for Freedom of the Press, and now a professor at the University of Minnesota's School of Journalism and Mass Communication. As a result, traditional media organizations are rethinking their newsgathering methods generally, and their use of confidential sources in particular, with many reporters borrowing techniques from CIA operatives and members of organized crime to keep information out of the hands of the government, should it come knocking at their doors.

Meanwhile, some traditional news organizations have come under attack for their judgments about what to broadcast or publish. In October 2006, several members of Congress called for the Pentagon to remove embedded CNN reporters from Iraq after the network aired a controversial video showing insurgent snipers targeting American soldiers. Earlier that year the New York Times caused a firestorm when it revealed classified information about several secret government programs intended to combat terrorism, eliciting criticism not only from segments of the public, but also from numerous elected officials, some of whom urged criminal prosecution for the disclosure. Although there are laws on the books that arguably would allow charges to be brought for the mere publication of classified information, they never have been employed against a news organization. Some members of Congress are also sponsoring new laws that would criminalize the unauthorized disclosure of classified information. The fact that suggestions these laws should be used against journalists are being taken somewhat seriously is further evidence that news organizations find themselves in troubled times.

Compounding these vexing issues is perhaps an even greater challenge to traditional journalism: the emergence of large numbers of nonprofessionals and nontraditional journalists (including many bloggers) as a significant force in defining and distributing news.

"The center of thinking within journalism is not completely within the newsroom anymore," observes Lew Friedland of the University of Wisconsin-Madison's School of Journalism and Mass Communication. As for "the center of thinking about public life -- which is essentially what good journalism is," it is "moving out to hundreds of thousands of people. The Web makes it possible for citizens to think in public together. That is not a fad. That is the underlying reality of the news industry for the next 30 to 50 years."

Many keen media observers acknowledge that a fundamental change in the nature of journalism is at hand. In April 2006, the Economist magazine dedicated a substantial part of one of its issues to "new media." Known for its careful analysis, and rarely prone to hyperbole, the Economist argued that "society is in the early phases of what appears to be a media revolution on the scale of that launched by Gutenberg [inventor of the printing press] in 1448." The magazine followed that up with an August 2006 cover page and story entitled "Who Killed the Newspaper?" which likewise chronicled fundamental changes facing traditional media organizations. In a recent assessment of the state of journalism, Geneva Overholser (now a professor at the University of Missouri School of Journalism, and formerly editor of the Des Moines Register, ombudsman of the Washington Post, and member of the New York Times editorial board) was more direct: "Journalism as we know it is over."

Journalism schools and professional organizations also seem to be getting the picture. The October 2005 issue of Quill, the magazine published by the Society of Professional Journalists, featured an article entitled "Citizen Journalism Continues to Surge." The August 2006 edition of the same magazine included an article warning that "students must prepare for the future of citizen media." Leading journalism publications like the American Journalism Review and Columbia Journalism Review now regularly discuss journalism by nonprofessionals. And, perhaps even more telling, money is starting to flow to nontraditional journalism ventures from a variety of sources, including foundations, venture capital funds, and wealthy individuals (such as Mark Cuban, the spirited owner of the NBA's Dallas Mavericks as well as several technology and media companies, and Craig Newmark, founder of the wildly successful Web site craigslist).

How We Got Here: The Birth of American Journalism

To fully appreciate the current state of journalism and the transformation underway requires a short review of the origins of American journalism.

The first publications produced at regular intervals appeared in the colonies in the early 1700s, initially in the form of newspapers and later as magazines. These periodicals enjoyed steady growth throughout the eighteenth century, made possible in large part by the government postal system, and in particular by the decision in 1792 to provide financial subsidies for newspapers distributed through the postal system, later extended to magazines as well.

The development of periodicals was also spurred by other factors, like the growth of cities and the spread of public education and literacy (which provided bigger audiences concentrated in smaller areas), as well as by improved and less costly printing. These same forces also gave rise in the 1830s to what is referred to as the "penny press" -- a description given to a type of lively, independent daily newspaper sold on street corners for a penny each, considerably less than the more established papers that existed at the time. Supported primarily by advertisers seeking to reach wide audiences, the most popular penny papers sold tens of thousands of copies daily. A number of today's venerable newspapers themselves started as penny papers, including the New York Times, the Chicago Tribune, and the Baltimore Sun.

The arrival of the penny press marked a turning point in American media. Not only did these papers usher in important practices in news coverage -- like regularly printing stories about domestic politics -- but they heralded a rapid expansion of newspaper readership. By the 1830s, the United States had more than 1,200 newspapers, ninety of which were daily, with newspapers making up 95 percent of the weight of material mailed through the postal system.

The advent of newspaper advertising also marked a turning point in the early history of the American press, allowing publishers a degree of independence from political parties they had not previously enjoyed. During the colonial period the press had been free in the sense that it was unencumbered by obligations to the government, including the absence of taxes like those levied on the press in England. Printers of newspapers, books, and leaflets generally remained agnostic about the viewpoints of their customers, publishing for a price whatever material came their way. But printers needed money, and as more of it came from readers and advertisers, they grew less reliant on political parties themselves.

While the press had largely achieved financial independence from political parties by the mid-1800s, this independence should not be confused with indifference. The press gradually also grew more assertive, taking an increasingly active part in public debate, often with strong political biases of their own. Around the turn of the century, magazines and newspapers began to publish serious investigative pieces. By that point, the daily newspaper had come to dominate the public sphere, and every major city had multiple papers, representing a range of ideological perspectives.

Although the press had developed an independent streak around the 1830s, for much of the next century it was substantially influenced by prevailing political and economic establishments, with reporters rarely exposing the failings of government and leading corporations. In the aftermath of World War I, however, a movement emerged that sought more objectivity and use of evidence by the press. While aspects of what came to be viewed as "journalistic objectivity" -- such as detachment, nonpartisanship, an emphasis on facts rather than opinions, balance, and a presentation of "both sides" -- had begun to surface decades earlier, adherence to them accelerated after the war. So too did the prevalence of fact-gathering techniques like interviewing, which became widely practiced by 1900, and soon thereafter became a hallmark of American journalism. By the time of World War II, "objectivity" was viewed as the centerpiece of the journalists' code, and became a focal point of journalism education as well as the ethical guidelines of journalism organizations and professional associations.

The emergence of objectivity as journalism's creed occurred in tandem with development of the conception of journalism as a profession. As Michael Schudson, a professor at the University of California, San Diego, explains in The Sociology of News, "objectivity seemed a natural and progressive ideology for an aspiring occupational group at a moment when science was God, efficiency was cherished, and increasingly prominent elites judged partisanship a vestige of the tribal nineteenth century." This period featured the creation of several journalism-related professional associations and the development of codes of conduct to guide their budding vocation. For instance, the National Press Club was formed in 1908, and soon thereafter adopted as part of its mission the fostering of "the ethical standards of the profession." The first chapter of what is known today as the Society of Professional Journalists was organized in 1909. And in 1922, newspaper editors started the American Society of Newspaper Editors, the first nationwide professional journalism association.

The country's first journalism schools were also established during this time. The oldest, the Missouri School of Journalism, was founded in 1908 by Walter Williams -- who also authored the "Journalist's Creed," an influential ethics code for journalists. Within a decade after the Missouri School of Journalism opened its doors, there were eighty more journalism programs across the country.

Once the view of the press as a profession of objective reporters had taken hold, the idea of the press as a watchdog began to take deeper root. Indeed, as early as the 1950s the press was described as the Fourth Branch of government -- reflecting the belief that the press played a critical role in the system of checks and balances characterizing the structure of the federal government. The idea of a press truly adversarial to the government emerged in the McCarthy era, and grew stronger during the Vietnam War and Watergate. The transition from independence to objectivity to a quasi-official adversary of the government was a defining feature of the journalism that emerged during the last century.

Corporatization of the News Business and Journalism

The latter part of the twentieth century featured another important development for journalism: nearly all significant news organizations were transformed into or acquired by enormous corporations. Most American newspapers were founded by individuals or families. Today, a few large companies control the vast majority of organizations dedicated to the publication of news and related information. And those companies tend to own lots of other businesses, most of which have nothing to do with journalism.

Many news organizations used to be run without regard for the fact that they lost money. This was often acceptable for a number of reasons, including because a company's news division was part of an overall effort to establish the brand of the larger business or, in the case of television and radio, because the news helped fulfill public service requirements imposed on broadcasters by the Federal Communications Commission. But with this more recent wave of consolidation and corporatization has come an increased focus on the profitability of the news businesses enveloped within these companies. This, in turn, has significantly changed the way journalism is practiced.

For example, increased focus on profits has contributed to the proliferation of television news coverage and formats that are inexpensive to produce, like talk shows and other programming based on discussion and opinion, and the virtual disappearance of reports requiring time-consuming newsgathering and investigation. The combination of high ratings and low production costs results in frequent wall-to-wall coverage of celebrity trials, select missing persons cases, and hurricanes and other weather-related events.

When news organizations with limited resources dedicated to newsgathering and analysis actually cover more substantive stories, they tend to end up with a herd mentality, chasing the same ones. And even in those instances, reporting is overwhelmingly composed of regurgitated statements by official sources, or by the reporting of information gathered by another organization -- a practice increasingly in vogue. Washington Post veterans Len Downie and Robert Kaiser were on the mark when they wrote in their book The News About the News, examining the condition of American journalism, that there is often "too little news in the news."

The quest for profits also impels large corporations with news divisions to employ them in promoting or cross-selling their other businesses. Remember that story you recently saw on the local news about the program which happens to run on the same network? How about the piece touting the new CD released by a music label owned by the same company that owns the news station? News seems to have become an extension of these companies' entertainment businesses, as well as a way to promote them. Journalism, it would seem, is fast becoming just another form of content.

Professional journalists are among those complaining loudest about these developments. Downie and Kaiser believe "the drift away from serious coverage of serious subjects was part of the most important change in American news values in the last years of the twentieth century: Covering the news, once seen primarily as a public service that could also make a profit, became primarily a vehicle for attracting audiences and selling advertising, to make money." Bill Kovach and Tom Rosenstiel, chairman and vice chairman of the Committee of Concerned Journalists (a group formed in the late 1990s to undertake a comprehensive examination of journalism and the responsibilities of journalists), have observed in The Elements of Journalism that rather than censorship the "new danger is that independent journalism may be dissolved in the solvent of commercial communication and synergistic self-promotion." Reporting on foreign affairs seems to have been particularly hard hit, with Tom Fenton, a correspondent of four decades, remarking that the "mega-corporations that have taken over the major American news companies [have] squeezed the life out of foreign news reporting." The voices of holdouts within large media companies who still believe in grand journalistic ambitions are often drowned out as the role of journalists within these mega-companies diminishes. "The economic imperatives of the communications media, the star system of celebrity journalism and the need to supply the public with constant reinforcement or shock therapy have combined to make fools, not truth-seekers, out of journalists," contends Bruce Sanford, one of the nation's leading media lawyers.

Of course, news organizations do not deserve all the blame for this predicament. While there are many potential explanations for why audience interest in serious news seems to have diminished (including, I suspect, the proliferation of video games and wireless handheld devices that shorten our attention spans), the fact is that most Americans would prefer to be entertained than informed. And it is hard to entirely fault for-profit companies for responding to their customers' interests and desires. Media companies are profit driven, and therefore respond to the actual demands of customers rather than some idealized sense of what they should want.

Regardless of who deserves the blame, we are caught in a cycle in which the ambitions of news organizations and the appetites of news consumers are collectively diminishing the breadth and quality of reporting at most news organizations. The public's opinion of the institutional media has been declining for at least two decades, and unhappiness with the media establishment may be a significant cause of what veteran journalist James Fallows aptly describes as a "quiet consumers' boycott of the press." News organizations exacerbate this by themselves melding news with other forms of entertainment. The offerings of news organizations look more and more like just another product vying for the attention of the public -- an observation seemingly confirmed by a 2006 study, led by an Indiana University professor, which found coverage of the 2004 presidential election on The Daily Show with Jon Stewart substantively comparable with the broadcast television networks' newscasts.

The "New" Journalism?

More recently injected into this mix are the Internet and the Web. They clearly are not the first important technological innovations to transform journalism. The arrival of the telegraph in the 1830s and 1840s, and later the telephone, introduced powerful newsgathering tools that vastly increased the speed with which information could be transmitted across the country and the world. The commercialization of radio in the 1920s, and television several decades later, gave rise to two important methods of distributing news and other content as a complement (and competitor) to print.

Like prior technological innovations, the Web is a delivery device, not itself content. But what a delivery device it is! In a relatively short time the Web has forced news businesses, as well as other media and communications organizations, to rethink what they do and how they do it.

Why is the Web having such a dramatic effect? Three of its characteristics stand out, and are particularly relevant to its effect on journalism. First, it is inexpensive to access and use. Second, its access and use are unregulated and largely unconstrained by either government rules or physical scarcity. Third, unlike the communications innovations that preceded it, the Web allows the interaction of many-to-many rather than one-to-one (e.g., telegraph and telephone) or one-to-many (e.g., print, television, and radio).

Among other things, the Web has created an enormous supply of people who want to share information and ideas with a wide audience, and there are increasing numbers of people interested in hearing and discussing what they have to say. Many are doing so through "weblogs" (usually shortened to "blogs"), Web-based publications generally consisting of periodic postings and articles (typically arranged in reverse chronological order). Although blogs have been around since about 1992, it was not until 1999, when free software used for blogging became widely available, that their numbers began to increase rapidly.

Business Week reported in 2005 that there were nine million blogs, with forty thousand new ones being launched every day. These numbers may have been low at the time, but certainly were out of date a year later. In July 2006, the Web site Technorati, which describes itself as "the recognized authority on what's going on in the world of weblogs," issued a report to commemorate the moment when the number of blogs it tracks exceeded fifty million globally. This reflected a hundred-fold increase in the number of blogs over a three-year period.

Clearly, most bloggers do not aspire to anything other than providing information or entertainment for themselves and a small number of friends and relatives. According to a 2005 survey conducted by America Online, 16 percent of respondents said they blog because they are interested in journalism, while the vast majority do so for other reasons. This sentiment appears to have been corroborated by a 2006 survey conducted by the Pew Internet & American Life Project, which found 34 percent of bloggers consider blogging a form of journalism.

But there are tens of thousands of blogs and Web sites where nontraditional journalists report, analyze, and opine on a range of issues -- some covered by their mainstream counterparts, and some not. Many of these efforts are serious and purposeful, and a number of them have gained substantial followings. Several political blogs claim hundreds of thousands of daily viewers.

The growing importance of blogging as a source of news and opinion is evident not just from the number of blogs and their readers. It is also evident from polling conducted during January and February 2007, which found 30 percent of respondents view blogging as an important source of news and information (the figure was above 40 percent for those ages 18-29), while more than 55 percent identify it as important to the future of journalism (65 percent of those ages 18-29).

The growing significance of blogging is also reflected in developments like the founding of the Media Bloggers Association, "a non-partisan organization dedicated to promoting MBA members and their blogs, educating bloggers, and promoting the explosion of citizen's media," and the formation of many other blogger groups around the country. The MBA, formed in 2004, had over one thousand members in mid-2006, and expects its membership to increase to about ten thousand in the near future. The group received a burst of attention in early 2007 when it obtained two press credentials, to be shared by about a dozen of its members, allowing them special access to the trial of Scooter Libby, and then partnered with the Associated Press for distribution of its members' trial coverage.

But the transformation underway is not limited to blogging. Consider the creation of entities like the Center for Citizen Media, a nonprofit entity affiliated with the University of California, Berkeley, Graduate School of Journalism and the Berkman Center for Internet and Society at Harvard Law School. Formed at the end of 2005, it is an initiative aimed at enabling and encouraging grassroots media and other forms of nontraditional journalism. The center is founded and directed by Dan Gillmor, a former San Jose Mercury News columnist and author of We the Media: Grassroots Journalism by the People, for the People, published in 2004.

Similar efforts are being undertaken by journalism professors and at a number of journalism schools. Dozens of citizens have taken workshops on reporting basics as part of the Madison Commons, a proj-

ect led by a journalism professor at the University of Wisconsin-Madison. Another professor, at Ohio University's Scripps School of Journalism, is recruiting and training citizens in three rural villages in southeastern Ohio to create a monthly newsletter and a Web site on local government, schools, business, and organizations, as part of the Route 7 Report. The University of South Carolina School of Journalism and Mass Communication has joined with the Hartsville Messenger, a twice-weekly publication serving an area of twenty thousand people in that state, to form Hartsville Today, a project to involve citizens in "community storytelling" and "community conversation," envisioned as a pilot to develop insights for other smaller papers that consider "bringing in readers as journalistic collaborators." J-Lab: The Institute for Interactive Journalism, at the University of Maryland's journalism school, has partnered with the Knight Foundation in forming the Knight Citizen News Network, a self-help Web site that seeks to guide "citizens who want to start their own news ventures" and "open the doors to citizen participation for traditional news organizations seeking to embrace user-generated content."

There are several innovative projects underway to involve citizens in investigation and analysis of Congress. For example, Congresspedia is a not-for-profit, collaborative project of the Center for Media and Democracy and the Sunlight Foundation, developing a "citizen's encyclopedia on Congress." Another proj-

ect (in which at least one traditional news organization is taking part) will deploy citizens to track and report on the congressional budget process.

Citizen initiatives are not exclusively focused on national issues. A large number of blogs and Web sites led by nonprofessionals concentrate on local issues -- often poorly covered by mainstream news organizations. One notable example is a venture called Backfence, which focuses on events and issues in specific towns, providing "opportunities for people to share information with their neighbors and a place for everyone to comment on that information -- bringing together the community's collective knowledge." By the end of 2006, Backfence had established Web sites for communities in California, Illinois, Maryland, and Virginia, and planned to move into a dozen more states over the next few years (at least before announcing a management shake-up in January 2007). There are already numerous other "hyperlocal" Web sites set up across the country, with more appearing every week.

Nor are efforts at citizen journalism limited to the Internet. Nonprofessionals are also contributing to television ventures that feature their work. One is Current TV, a cable and satellite channel launched in 2005 by former Vice President Al Gore. Current TV solicits and uses viewer-created submissions, which constitute approximately one-third of its programming content. As of January 2007, it was available in more than 38 million homes in the United States. In late 2006, it entered into a joint venture with Yahoo!, and plans to create a British version to air in Europe. Established television networks are also beginning to get into the act, with several actively soliciting content from their viewers. So, too, is cable giant Comcast, which joined forces with the Web site to create a series from user-generated content that will appear online and through Comcast's video-on-demand service.

Although most established news organizations hate to admit it, nontraditional journalists have become a force in breaking news and analyzing it. Matt Drudge, one of the earliest and most controversial to disseminate political news and commentary through the Internet, broke the story about President Clinton's affair with Monica Lewinsky. His Drudge Report scooped Newsweek, which elected not to publish the article it was developing on the Clinton-Lewinsky relationship, and other mainstream journalism powerhouses did not even have the story to publish until after Drudge went with it. The significance of that moment in the history of American journalism is not lost on many professional journalists. Michael Kinsley, who has run the editorial page of the Los Angeles Times and edited the New Republic magazine as well as the online periodical Slate, commented about the Lewinsky scandal: "The Internet made this story. And this story made the Internet. Clintongate, or whatever we are going to call it, is to the Internet what the Kennedy assassination was to TV news: its coming of age as a media force."

Since then, nontraditional journalists have continued shaping the media landscape. For example, in 2002, then-Senate Majority Leader Trent Lott came under fire for praising fellow Senator Strom Thurmond's segregationist campaign for the presidency in 1948, suggesting the nation would have been better off had Thurmond been elected. After an initial wave of criticism, the controversy abated in the mainstream media. However, bloggers continued to hammer on the story, scrutinizing Lott's legislative record on civil rights and past statements about Thurmond's 1948 candidacy, prompting traditional media outlets to pick it up again, ultimately leading to his resignation as majority leader. In 2004, contributors to the conservative blog Power Line were primarily responsible for discrediting documents used in CBS News's unflattering story about President George W. Bush's National Guard service (based in part on expertise about old typewriters), ultimately casting a cloud over Dan Rather and leading to the departure of several others at CBS who worked on the piece. More recently, bloggers uncovered and publicized examples of doctored photographs published by some news organizations during the 2006 conflict between Israel and Hezbollah.

The contributions of citizens working outside established news organizations have not been limited to the disclosure of discrete facts and one-time events. For instance, bloggers -- including some active-duty military personnel -- have provided important coverage of the conflicts in Iraq and Afghanistan, often supplying information that could not be obtained by mainstream journalists.

There is clearly an interest in the work of these nonprofessionals. More than fifty million Americans turn daily to the Internet for news -- a number that is certain to grow. Of those, many look beyond traditional news organizations as sources of information and opinion. One 2006 survey shows that 39 percent of Internet users (57 million American adults) read blogs. According to another, from early 2007, more than 80 percent of respondents view Web sites as an important source of news and information, and most believe blogging and other sources outside of established media are important to the future of journalism.

The "New" Journalists?

Are these bloggers and other nonprofessionals journalists? Not surprisingly, professional journalists and the general public tend to see things differently. According to a study conducted by the University of Pennsylvania in 2005, 81 percent of professional journalists resisted the idea that bloggers are journalists. In contrast, an informal poll of readers taken by the Christian Science Monitor in the same year found that 57 percent of respondents believed bloggers are journalists and deserve the protections extended to the press.

I believe the readers have the better view -- at least in the sense that some blogging clearly constitutes journalism. Although the concept of "news" arguably transcends time and culture, journalism as an idea, and as a practice, does not. It is only for the past two or three centuries that people have regularly written and published true stories about current events. Journalism is a tool for informing one another about the world's affairs, and helping make sense of it all. Journalists are not a priestly class. They are citizens, just like the rest of us. In the United States, we are all free to write down our thoughts and share them with others. Many bloggers and others using the Internet to distribute ideas and information are engaging in the same activity as professional journalists (whether they do it as accurately, or as well, is another matter), and it hardly seems relevant that they use the Web as their method of publication, or that they may not get paid for their efforts.

The century that preceded the emergence of the Web -- a period dominated by large news organizations, increasingly controlled by profit-oriented corporations -- appears to have hardened an artificial distinction between professional journalists and everyone else. After an extended detour during which the means of mass communication effectively rested in the hands of the few, technological developments, with the Web at its foundation, are unwinding that process and democratizing communications as a whole, and journalism in particular.

In a sense, we are returning to where we started. The institutional press no longer possesses the exclusive means of reaching the public. Anyone can disseminate information to the rest of the world (at least anyone with computer access) at virtually no expense.

So what should we call this new breed of journalism? The list of terms used to describe it is already long and growing: Stand-alone Journalism; Grassroots Journalism; Ad Hoc Journalism; Personal Journalism; Bottom-up Journalism; Participatory Journalism; Networked Journalism; Collaborative Journalism; Open Source Journalism; "We" Journalism; "We-dia" (contrasted with Media); and Citizen Journalism (the term I generally prefer, and the one I will most often use throughout the book).

All of these terms generally refer to forms of nontraditional journalism, typically practiced by someone who has not (at least heretofore) engaged in journalism to make a living, and who is not associated with what previously might have been viewed as a mainstream media organization. A subset -- for instance, Networked or Collaborative Journalism -- is, by definition, collective in nature, designed to promote and allow interactive writing and editing. This collective work is largely modeled upon, and inspired by, the success of similar efforts in creating a type of computer software called "open source" that, as the name suggests, allows free access to source code, and permits people to modify and add to the code. This process contributed to the development of the software called Linux, which successfully competes with proprietary software developed by Microsoft and other companies.

Right now traditional media organizations and citizen journalists are circling each other warily, trying to figure out the best way to deal with one another. Although professional journalists tend to have greater resources, citizen journalists have certain advantages of their own. For instance, many bloggers specialize in topics to the extent few professionals employed by media companies can, and the Web arguably provides better error-correction mechanisms than traditional media with large numbers of "fact-checkers" weighing in at warp speed.

While recognizing some of the strengths of bloggers and their Internet brethren, many professional journalists are reluctant to view them as able to make meaningful contributions to journalism. Nicholas Lemann, dean of Columbia University's Graduate School of Journalism, drew considerable criticism from bloggers for his 2006 article in the New Yorker, provocatively entitled "Amateur Hour," which examined the role of nonprofessional journalists, and concluded that, as of now, "there is not much relation between claims for the possibilities inherent in journalist-free journalism and what people engaged in that pursuit are actually producing." Another Columbia professor, Samuel Freedman, was more blunt, recoiling at the notion of calling nonprofessionals "journalists," and claiming that the citizen journalism movement "forms part of a larger attempt to degrade, even to disenfranchise, journalism as practiced by trained professionals."

Similar skepticism about the virtues of journalism performed by nonprofessionals has been expressed by Fred Brown, a past president of the century-old Society of Professional Journalists, the largest of the nation's journalism associations, who wrote a "traditional journalist's" responsibility is to find and report "new and accurate information," while blogs are "good at finding flaws in others' information" and the priority of a nontraditional journalist is "to be interesting." USA Today columnist Andrew Kantor similarly chided "amateur" journalists for their penchant to "make up the rules as they go" and "blow small things out of proportion."

Some media observers critique bloggers and other nonprofessionals on the grounds they have a parasitic relationship with mainstream news organizations. As Richard Posner, the prolific author and federal judge, wrote in the New York Times Book Review, "the legitimate gripe of the conventional media is not that bloggers undermine the overall accuracy of news reporting, but that they are free riders who may in the long run undermine the ability of the conventional media to finance the very reporting on which bloggers depend."

Others decry nonprofessional journalists because they muddy the waters at a time when we need professional journalists more than ever, to filter and interpret the wealth of information available in the Internet age. Today, they claim, the press's sorting, selecting, and judging functions are more important than ever.

In the midst of this criticism, part of the response of the mainstream media to the phenomenon is to co-opt or imitate it, explicitly recognizing the existence of citizen journalists and seeking to bring them into the fold in limited respects. MSNBC, for instance, set up a section of its Web site for "citizen journalists," from which it doles out "assignments" to these intrepid volunteers, and then posts some of their reports. CBS News revamped its Web site to add a blog for commentary about its work, and CNN solicits viewer video and commentary on its Web site. Gannett, the nation's largest newspaper chain and owner of USA Today, announced in November 2006 that it was substantially restructuring its business, in part to integrate elements of citizen journalism. In February 2007, the Associated Press announced it had teamed up with, a Vancouver-based participatory news network with 60,000 contributors from 140 countries, to incorporate citizen contributions into Associated Press reporting. Other traditional news organizations are employing similar strategies.

Regardless of how the relationship between mainstream media and citizen journalists unfolds, it is clear that online and other nontraditional journalists will play an increasingly significant role in American life. And this has, and will, engender resistance from some. History teaches us that when older news media are confronted by newer ones, debates over the nature of news and journalism often ensue. We are witnessing the beginning of such debates.

Consider Apple Computer v. Doe 1. This controversy -- a David versus Goliath story with a dash of corporate espionage mixed in -- is among the first of what will be many Internet-era legal disputes wrestling with the question: "Who is a journalist?"

The drama kicked off in December 2004 when technology juggernaut Apple Computer (maker of Mac computers and iPods, among other devices) filed a lawsuit in a California state court against unnamed individuals (identified in court papers as "Does," like Jane Doe or Jim Doe) who allegedly leaked information about new technologies being developed by Apple to several Web sites that focus on the company and its products, including AppleInsider and PowerPage. Apple claimed that these unnamed Does, who had given information to the Web sites, unlawfully disclosed the company's "trade secrets," and sought damages from the alleged perpetrators.

Apple could not proceed with its case, however, without figuring out the names of the unidentified "Does" who it believed had shared its trade secrets, now broadcast to the public through the Web. One of Apple's first steps after filing its lawsuit was to seek documents from a company called nfox, the e-mail service provider for PowerPage, one of the Web sites that published information about Apple's new technology and unreleased products, which could reveal the identity of the person(s) who disclosed the information to PowerPage.

PowerPage, and other Web sites from whom Apple sought similar information, asked the court to block Apple's efforts to obtain documents that would reveal how and from whom they had obtained information about Apple's unreleased products. Part of their argument to the court was that as journalists they are protected from such inquiries by California and federal law.

The trial court judge in the case, after noting that figuring out who is a "journalist" has "become more complicated as the variety of media has expanded," avoided deciding whether the sponsors of these Web sites are journalists, ruling that even if they are, Apple was entitled to the information it sought regarding the identity of the "Does" who supposedly disclosed its trade secrets.

The sponsors of the Web sites appealed that decision contending, as they did before the trial court judge, that as "journalists" they are entitled to protection from Apple's efforts to obtain the identity of their sources. In support of their argument they submitted testimony from Dan Gillmor, author of We the Media, in which he expressed his view that the Web sites at issue are "news periodicals" like newspapers and magazines, and that the publishers, editors, and authors connected with those Web sites "are engaged in the process of journalism, disseminating information to the public that they have sought, gathered, received or processed with that intent."

Apple, for its part, disputed that the Web site sponsors are journalists or that they are entitled to shield their sources on the basis of California law or the First Amendment of the United States Constitution.

In a widely anticipated ruling, the California Court of Appeals decided in favor of the Web sites and against Apple. Specifically, the court rejected Apple's argument that the online publications could not rely on the protections of California's statute shielding journalists from certain information requests because they were not engaged in "legitimate" journalism. As the court explained:

We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the...marketplace.

The opinion went on to emphasize that "courts must be extremely wary about deciding what information is worthy of publication and what information is not," and keenly observed that the "decentralization of expressive capacity" made possible by technological developments "is unquestionably one of the most significant cultural developments since the invention of the printing press."

Faced with a resounding rejection of its arguments, Apple surprised many observers when it announced that it was abandoning its effort to compel the disclosure of the leakers, and did not appeal the ruling.

The Apple case is just one of what will be many skirmishes in the years to come forcing us to consider what journalism is in the Internet age, and how nontraditional journalists should be treated relative to professional journalists and members of the institutional media.

Some of these struggles will be waged quietly, outside the limelight -- such as that of one blogger, whose request for press credentials to cover the Kentucky General Assembly was denied by the state, or another whose request for media credentials to cover a state transportation conference was rejected by the Texas Department of Transportation and who was told the department was accepting applications only from "mainstream news media."

Others will garner more attention, as with the case of Josh Wolf, a self-described independent journalist and filmmaker, who operates his own Web site, The Revolution Will Be Televised. Wolf was jailed in August 2006 for failing to comply with a federal court order requiring that he turn over his video recording of a June 2005 riot between anarchists and the San Francisco police, sought as part of an investigation of damage to a city police car.

The trial court judge who ordered Wolf to produce his video recording accepted his argument that he was a journalist, as the term is used in California's "shield law" protecting journalists from such requests under limited circumstances. The judge, nevertheless, concluded that California law did not authorize Wolf's refusal in this case. A court of appeals agreed, rejecting Wolf's arguments. Wolf spent a total of 226 days in prison before his release in early April 2007, when he apparently was finally able to convince prosecutors he did not have information important to their investigation. Wolf had been imprisoned longer than any other American journalist.

Wolf's saga is noteworthy not just for the length of his incarceration. Typically, efforts to coerce the disclosure of information and material used for newsgathering trigger briefs from a host of major media organizations in support of the journalist resisting such efforts. In Wolf's case, several journalism interest groups and professional associations filed briefs on his behalf, and the Society of Professional Journalists contributed over $30,000 toward his legal defense, but no organizations that themselves practice journalism elected to do so, despite having filed briefs in support of traditional journalists in other cases, including those called before the grand jury investigating the Plame matter.

The reluctance of mainstream media organizations to recognize nontraditional and citizen journalists as "journalists" is evident in other areas -- and will play a significant role in the effort by a new and growing generation of nonprofessionals to avoid being relegated to second-class status.

The media establishment's claim of priority over other citizens is pervasive -- and accepted at many levels of federal and state government. Whatever the merits of this perspective in the past, the transformation of journalism necessitates that we reconsider the practice of reflexively extending professional journalists rights and privileges not available to others engaged in the practice of journalism.

There is no doubt that we are all well served by having a cadre of energetic, smart, and well-funded professional journalists on the lookout for the rest of us -- and there would be cause for alarm if they disappeared. But the reality is that professional journalists do not go most places, or see most things. Much of what is worth knowing, and worth thinking about, is neglected by the mainstream media. Now, with the rise of citizen journalism, many more people are passing on their observations and ideas, playing a role previously occupied only by members of the institutional press. Journalism has been elegantly described as carrying on and amplifying conversation among the people themselves. The Web and other technological advances have enabled many more of us to participate in these conversations.

Who is a journalist? Should journalists be given rights and privileges not enjoyed by other citizens? It is time for us to confront these questions directly and thoughtfully. We all have a stake in how they are answered.

Copyright © 2007 by Scott E. Gant

Library of Congress subject headings for this publication:
Press law -- United States.
Journalists -- Legal status, laws, etc. -- United States.
Internet -- Law and legislation -- United States.