Are We Not Media?

PRESS

The Watergate coverup, the Pentagon Papers leak and the CIA’s involvement and clandestine support of largescale cocaine sales to fund the Nicaraguan Contras are among the stop-the-presses news stories that spring to mind when those of a certain age contemplate the term “journalism.”

Whether factual or not, such scandals and international intrigue conjure up the image of hard-driving, incorruptible reporters and editors working for the nation’s legacy newspapers and broadcast media, unearthing information the public needs to know.

We think of reporting on the Vietnam war, 9/11, and the war in Ukraine. Stories of national and international importance told by mass news media conglomerates (“institutional press”) such as Fox News, the Associated Press and the Wall Street Journal.

But modern technology has forever changed the rules, and the number of those actually playing it has exploded. No longer is the title of journalist limited to credentialed representatives from newspapers, magazines, radio and television outlets.

And unlike doctors or lawyers, who require state certification to practice, there are almost no limits to who can consider themselves a journalist and lay claim to whatever privileges might accompany the moniker.

That’s a good thing.

These days, there are hundreds, if not thousands, of everyday

Are We Not Media?

With the advent of the Internet, virtually anyone these days can fit the definition of the journalist. (Hint: That’s a good thing.)

By SYDNEY PHILLIPS Litigation Counsel

Americans who fit the legal definition of “news media.” Ultimately, these people — committed individuals on the ground writing unbidden about local government, small-town politics and the misdeeds occurring in our own backyards — are the ones who need the most protection.

Arguably, the most essential element to a free society is an informed citizenry. Democracy can only flourish when its citizens are aware and apprised of the world around them. As the old saying goes, sunlight is the best disinfectant.

The importance of this cannot be diminished. The right and ability to communicate freely without fear of retribution from the government necessitates the broadest possible interpretation of who can communicate ideas and opinions.

This is one of the key tenets that makes America great — the untrammeled right of the average American to report on all that’s occurring within his or her sphere of influence and to tell the stories that matter to those at the local, regional and national level.

No one understood this better than the Founding Fathers, who included absolute protection of freedom of the press in the very first amendment to the United States Constitution.

Freedom of the press is not simply there to protect journalism in its most traditional sense but also to protect the rights of ordinary citizens wishing to gather and disseminate news.

The Bill of Rights proclaims, “Congress shall make no law … abridging the freedom of speech, or of the press.” The Founders understood that the freedom of press meant the protection of a free society. James Madison in 1789 defined freedom of the press as “…one of the great bulwarks of liberty.” Yet beyond this, not much is known about the Founders’ debate on the question.

No arguments were recorded, and the little we do know is limited to understanding it was considered a matter of great importance.

In the ensuing two and a half centuries, courts and legislatures have attempted to better understand the role of the press in a just society. U.S. Supreme Court Justice Potter Stewart argued in a famous concurring opinion:

“(The fact that the) First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American

Society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”

The “sensitivity” Justice Stewart spoke of is the unique way the government treats the press. Due to the media’s role in disseminating news and information, the state gives deference to those it recognizes as members of the fraternity.

This deference provides the press with access to records, courtrooms and spaces from which a regular, uncredentialed member of the public might be barred. This unique access and perspective is imperative to the storytelling and news-gathering functions of the press.

In fact, so many of the stories we recognize as great reporting come from the information gathered by people accessing government records.

Each state has responded to the role of the press differently. In Washington state, for example, the Legislature has defined “news media” as:

“(A)ny newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.” While this definition pays homage to traditional forms of journalism, it also classifies “any entity” engaged in the regular business of “news gathering and disseminating” as a member of news media or the “press.”

Simply put, any courtesies and privileges enjoyed by more conventional media outlets must also be extended to anyone with an interest in acquiring information and possessing a medium — including an online blog — with which it can be shared with others.

Under the law, there is no distinction between the highest-paid reporter at the New York Times and your neighbor blogging in his pajamas at the kitchen table.

Nor should there be.

The single most important privilege extended to news media is the access to public records. The government is the servant of the people, and in that role is the maintainer and keeper of public information.

The ability and opportunity to report on the government cannot be understated. Washington’s Public Records Act, to cite a local example, expresses succinctly the importance of public records to the residents of the state when it says:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Like the traditional media and the growing crop of online journalists, the multitude of government watchdog organizations that have sprung up to fill the information void cannot perform their critical mission of encouraging honest, accountable leadership without access to public records.

Gathering data from government agencies is pivotal to the information these organizations gather and analyze. And because, aided by modern technology, they have the ability to disseminate this information to millions of consumers with the touch of a button, these groups are unquestionably a member of the media in the truest sense of the word.

Or so any serious reading of the law would indicate. Unfortunately, not

And that’s the way it wasn’t

There’s a popular meme making the rounds on Facebook that has a picture of longtime CBS News anchor Walter Cronkite above the caption, “Can anyone remember when journalists reported facts and not opinions?”

If you can’t remember such a time, that’s because it never existed.

It later became clear after his retirement that Cronkite was extremely liberal and, to cite just the most obvious example, his opinion in the wake of the 1968 Tet Offensive that the war in Vietnam had become unwinnable was perhaps the most important factor in turning American public opinion against it. In fact, Tet — an overwhelming American victory militarily — was seen by the North Vietnamese as a last-ditch effort before returning to the bargaining table to surrender. But thanks to Cronkite, our enemy was emboldened and the war dragged on for four more years before U.S. forces withdrew in disgrace, leaving anywhere from 1.5 to 3.5 million South Vietnamese behind to be slaughtered by the aggressors.

Anyone nostalgic for the days when one liberal newscaster had that kind of power either shares Cronkite’s dystopian world view or is too lazy to think for him- or herself. The modern media landscape, with an almost unlimited number of news outlets, may be chaotic, but at least it offers a voice to opposing points of view. Why else would the Biden administration, desperate to suppress word of its many failures, brazenly create a “Ministry of

Truth” within the Department of Homeland Security whose job is nothing less than defining a lie as anything unflattering to the president and his liberal agenda. If only Uncle Walter were still around to give this naked power grab a patina of respectability.

everyone reads the law seriously.

The Freedom Foundation is currently embroiled in an all-toopredictable lawsuit with the state of Washington over a pair of standard information requests seeking to obtain the contact information for thousands of government employees so they can be informed of their right to opt out of union membership and dues.

Both of the agencies being queried considered these legitimate requests fbut were prevented from complying when several unions lodged a complaint citing a new state law that had taken effect the day after the request was filed limiting the disclosure of personal information.

An Appeals Court judge this spring sided with the unions on the question of the request’s timing but agreed an exception in the law for “news media” might include the Freedom Foundation.

The case was returned to Superior Court to consider that question.

Again, it couldn’t be more obvious that an exemption for “any entity” engaged in the regular business of “news gathering and disseminating” would have to apply to a nationally recognized public policy organization that:

n regularly informs public employees, donors and the public;

n publishes a monthly newspaper, a twice-yearly magazine and weekly blogs; n produces in-house a variety of videos based on its information; n utilizes the full-range of social media; and, n whose reporting has consistently led to stories being picked up by institutional press sources, have been cited by other government and private actors to influence change in their state and have led to hundreds of lawsuits to protect citizens from government over-reach and malfeasance.

The formula is simple: Information gathering + dissemination = media. And the unions know full well they will ultimately lose this battle. But they have no incentive to concede the point and millions of dollars in member dues to keep collecting while the case is bottled up in court.

Limiting access to spaces (open meetings and court rooms) and records has become the mission of government actors and private interest groups alike. As U.S. Supreme Court Justice William Brennan once opined:

“(T)he First Amendment … has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is not only

‘the principle that debate on public issues should be uninhibited, robust, and wide-open,’ but the antecedent assumption that valuable public debate – as well as other civic behavior – must be informed. The structural model links the First Amendment to the process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself but also for the indispensable conditions of meaningful communication.”

Government employees in particular and the public in general have a right to know what their elected leaders are up to, and the laws defining who is and isn’t entitled to that information are painfully explicit.

All they require is fair-minded enforcement.