Can you do journalism and not be a “journalist”?
Do people declared “journalists” get special speech and press rights that other American citizens do not enjoy?
Can anyone enjoy the right to free speech and free publication, even if that individual is not a full-time professional reporter?
These are some of the important legal questions that American politicians and bureaucrats must confront now that the Internet has made possible for people other than employees of major media companies to reach large and widespread audiences.
In recent weeks, federal officials seems to be favoring a view that certain individuals enjoy more speech and publication rights than others. New regulations from the Federal Trade Commission and a proposed federal shield law create legal double standards for individuals creating information for the public – one for employees and contractors of media companies and another for everyone else, including self-employed publishers.
This split calls into question what the First Amendment means, and whom it was intended to protect. Henry Mencken famously said that “freedom of the press is limited to those who own one.” [*Update: Jay Rosen tweets that the correct source of the quote, "freedom of the press is guaranteed only to those who own one" is A. J. Liebling. Citation here.] But with the Internet making a “press” available to anyone for free, does that “press” have to be of a certain type, or reach a certain number of people, to qualify for First Amendment protection?
The FTC this month published new regulations on the disclosure of advertiser-sponsored messages which could force bloggers and other independent publisher to publicly disclose every book, CD or sporting event admission that they receive in the course of their work, or face thousands of dollars in fines. Yet the FTC explicitly exempted offline, established media publishers from the new regulations.
Book blogger Edward Champion interviewed Richard Cleland of the FTC’s Bureau of Consumer Protection last week, prompting an evisceration of Cleland’s remarks by DailyKos’ Markos Moulitsas. Mark Cuban also publicly mocked the FTC rules.
Personally, I would love to see a strong crackdown on deceptive advertising. Businesses should not have the right to mislead the public by paying other parties to republish specific advertising messages, without disclosing that they are paid ads.
But the Supreme Court has granted First Amendment free-speech protection to quite a bit of commercial speech. And there’s a huge difference between paying a blogger to republish a specific commercial message and sending another blogger a free MP3 of a new music track to review.
The FTC should recognize that difference. Cleland’s remarks and its own guidelines (see page 47), however, suggest that the commission’s leadership remains oblivious. The concept that bloggers can cover their beats critically, and not merely as shills, seems lost upon the FTC.
I do not believe that the purposed of the First Amendment was to provide legal protection to specific class of corporations, namely, newspaper companies. The intent was, and should continue to be, to empower the people of the country, collectively and as individuals, to keep a watchful eye on their government and communities, and to speak in advocacy of their beliefs.
The Internet has fulfills the Founders’ promise of a free press to the people. No longer is “freedom of the press” limited to an elite few, as was the case in
Mencken Liebling’s day. People who have devoted their careers to reporting and publishing news should welcome this functional expansion of the First Amendment, providing us millions of new potential allies, engaged in our communities. A handful of clueless bureaucrats in the FTC should not be empowered to stand in their way.
Nor should established news organizations welcome what the FTC is trying to do. Unfortunately, the New York Times has, writing in an recent editorial:
“This is a matter of principle, not medium, and the new rules are not an excessive burden. The guidelines state that endorsers must disclose payments in cash or in kind from companies whose products they endorse. Telling a commentator flogging a product online to disclose commercial ties does not constitute a challenge to free speech.”
I welcome reading the Times’ movie critics noting in each of their reviews how they saw that film for free. And for the Times’ book critics doing the same for the books that they review. I suspect, however, that will never happen. Why? Because the new rules are a matter of medium, and are not an excessive burden only to those, like the New York Times, who have been exempted from following them.
Here’s hoping that Congress strikes down the FTC rules before they take effect. Or that a deep-pocketed blogger, such as Cuban or Kos, takes on the FTC in court, not leaving that task to middle-class online journalists who lacks the bank account to challenge the feds.
There ought to be no special class of citizen called a “journalist.” Anyone who does journalism, even if for just a moment in their lives, ought to enjoy the protections of the First Amendment when they choose to speak or to publish. Otherwise, we are ceding to unelected corporate employers the power to determine who gets First Amendment rights, or not.
Freedom of the press belongs to all Americans, and not just to the newspaper industry – despite what the FTC and the New York Times would have you believe.