I wrote about these rules in 2009, and should have acknowledged them in my piece earlier this week. In summary: The FTC said that online writers who accept freebies or payment from businesses they review must disclose that in their posts. The rule does not apply to those employed by “old media” news organizations or freelancers working on assignment for them.

Advertisers and bloggers aren’t the only people responding to these rules. I’ve heard from my theme park website correspondents that Busch Gardens in Tampa, Florida has asked online reporters attending its press events to sign a statement acknowledging that they will mention in their posts that they attended the event at the park’s invitation, in order to protect Busch Gardens’ corporate parent, SeaWorld Parks & Entertainment, from action under the FTC rules.

As much as I’m uncomfortable with the idea of agreeing upfront to include something in coverage as a condition of access, I absolutely see Busch Gardens’ point. Any organization inviting online reporters to cover an event or product has to take steps to protect itself in this legal environment. Personally, I think it’s a good idea to note when a review of coverage is of a press event, or a sample prepared for and sent directly to the press. Such products and events are’t always representative of what a consumer might buy off the shelf or get when he or she visits under “normal” operation. That’s why I’ve permitted my correspondents to sign such agreements, and gone ahead with such disclosures.

The FTC has been taking action on its rules, reaching settlements with some advertisers. The FTC seems especially to be focusing on retailers using online affiliate marketing, where publications are paid a commission on each sale to its readers.

In order to comply with FTC rules, an online publisher must note when it links to a product or service from which it will get a commission on a sale. Again, I think that’s good practice. In my experience, such notes actually have increased sales, and commissions. Loyal readers want to help their favorite websites, and such notes encourage them to click through and do their shopping there, since they know that part of their purchases will go to support a site that they believe in. In this case, disclosure not only helps keep readers informed, it pays off for the publisher.

Publishers must take care when disclosing affiliate links, however. Do not forget that if you are also using Google’s AdSense program, Google prohibits its AdSense publishers from explicitly drawing attention to and encouraging links on its ads “in order to avoid potential inflation of advertiser costs,” as Google’s suggested disclaimer says.

Obviously, a disclaimer on affiliate links draws attention to them. So it’s probably best not to run affiliate links in rotation with Google ads in the same place on your page templates, unless you can modify the template to show the disclaimer only when an affiliate link runs in that place, and not when a Google ad shows there.

And, for the record, I still think it stinks that online publishers are subject to these rules and newspaper and broadcast reporters and critics are not. Disclosure’s always a service to traders, provided that it’s done in an elegant way that informs the reader without bogging down the narrative of a piece. (Oh, to live in a world where we leave the writing to the writers, and not to the lawyers.)

So if you’re a reviewing a movie during a free screening at the studio lot, let us know that. If you’re sailing on a media-only cruise, don’t allow readers to believe that it was a regular, public sailing. If you’re reviewing a hotel on the newspaper’s dime, print that the newspaper paid for the trip. Be explicit. It shouldn’t matter whether you work for a newspaper, a website, another company or yourself. If you didn’t pay out of your own pocket for whatever you are reviewing, you should tell your readers who did.

Let’s count this as my vote to change this rule of journalism ethics. Instead of demanding “that the employer always pays” (because it doesn’t), let’s instead demand that “when the writer doesn’t pay, we tell the reader who did.”

With all of those extra responsibilities, do not forget about one other – one that directly conflicts with what you were taught as a reporter, but is nevertheless a responsibility that’s vital if you are to remain in business successfully.

You’ve got to get active, politically.

Decisions made by elected officials determine what information you can access, as well as who can access your publication, and how. They determine how much you pay in taxes, what infrastructure supports your business, as well as the same for your competition.

That’s why the news industry, for generations, has actively lobbied lawmakers to ensure that their decisions either help or at least minimize the harm to its companies.

But as an independent news publisher, you cannot rely on news industry lobbyists and established industry voices to represent your interests. Remember, those newspapers and broadcast and cable stations are your competition now. One characteristic of the environment that they are attempting to have government create (or maintain) is one in which it is difficult, if not impossible, to launch and grow successful competition to their businesses.

Fortunately for your current endeavor – though perhaps not for your former job – the news industry slept through that challenge in the 1990s, allowing the commercialization of the Internet in ways that made such competition inevitable.

But Big Media is fighting back now. Witness the attempt to gut “net neutrality,” the ability of the U.S. federal government to prohibit carriers from given traffic to certain parts of the Internet preference over traffic to other sites and services. A federal appeals court struck down the FCC’s ability to do that this week, potentially eliminating legal restrictions against Internet Service Providers demanding payment from you to allow your current readers future access your website.

As an independent news publisher, it is now very much in your economic interest to get on the phone and call your representatives in Congress, to ask that they make net neutrality a federal law, and to give the FCC the power to regulate ISPs on this issue.

It’s also in your interest as a reporter to get involved in local and state decisions about access to public records. In the Internet era, there’s a huge difference between “public records” that are available 24/7 on a public server in comma-delimited format, and “public records” that are available between 11am-1pm Mondays in a courthouse office, for physical inspection by someone not in possession of any electronic recording device.

Which type of public document would you rather deal with in your reporting? Remember, you can’t always count on your former colleagues in the traditional news industry to represent your interests here. With a newsroom of reporters who know shorthand, but no computer programmers on the newsroom staff, it’s conceivable that a newspaper publisher might not have a problem with the second option described above, and decline to push hard for legal changes to make the first a reality.

As an aspiring leader in your community, you should also take public stands on issues that affect the well-being of your community, whether they be school bond issues, commercial development plans or the police department budget. Whatever a newspaper publisher would have gotten involved with in the past, you, as a news website publisher, should consider taking on now. (See Amy Gahran’s excellent piece for KDMC’s News Leadership Blog, Going on the record: Civic engagement is for journalists, too!.)

Of course, that newspaper publisher assigned different employees to handle all those different tasks, and you might be going it alone now. But that’s no excuse to disengage from the political process that affects your livelihood… as well as that of the entire community you aspire to cover, and by doing so, represent.

So you will have to find a way to disclose what you do – to make clear to your readers what is reporting, what is advocacy and how one affects the other (or not). But don’t ever be afraid of losing credibility by engaging. I suspect that you’re more likely to put your credibility at risk if you fail to stand up for yourself and your readers. No one wants to follow a wimp.

So engage in local politics when you need to. And engage with your readers to let them know why you’re doing that, and how they can do the same to protect their interests.

After all, a community that’s engaged in its political process is one that going to want to read more about that process… building a larger potential audience for journalists’ work.

See, I told you that political engagement would serve your business’ interest!

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.

That was not the case this time last week.

On Friday, Sept. 28, the Myanmar government effectively shut down all cell-phone and Internet communication, stunting a citizen-journalism movement that had itself drawn international recognition.

The state-controlled media in Myanmar has been tight-lipped, to say the least. Communication with international news organizations has been spotty, and soldiers continue to turn reporters away at the borders. The message has been clear: “Nothing to see here.”

But armed with cell phones, cameras and laptops, common citizens and protesters stepped in to expose the conflict in real time. Some ran blogs of their own. Many dispatched pictures and videos of police violence to off-shore bloggers and news sites. Either way, they loosened the government’s chokehold on communication.

Now, with the ebb and flow of information from within at a standstill, the offshore sites are left to sustain awareness. A brand-new site out of Germany, Free-Burma.org, calls on bloggers around the world to post a “Free Burma” awareness graphic on any posts today, Oct. 4. Organizer Philipp Hausser talked to us about “International Bloggers’ Day For Burma” and the impact of Myanmar’s citizen-journalist phenomenon.

Online Journalism Review: First off, can you tell me a little about the history of your site?

Phillip Hausser: The original idea came from a Blogger in Italy. The well-known German blogger Robert Basic had an idea “to do something” and asked what could be done. Many comments; different opinions. Everything was discussed in a Wiki and the idea of an international blogger day was born.

Christian Hahn [Hausser's partner] and I found that this was a good idea to show the people in Burma our solidarity for their peaceful protests. To help the action to get better organized (the wiki was and is still very unorganized) we decided overnight to set up the domain and build a website.

OJR: And how have results been so far?

Hausser: It’s now in seven different languages, with an overwhelming success: Over 10,000 visitors came just in the first 24 hours, and over 30,000 visitors to date. The site [launched] Sunday.

The reason for so many visitors is a good working network. People spread the message within ours around the globe and many people joined.

And yes, the support was great! We reached many, many people in almost every country and had media coverage around the globe – all in 4 days.

Let’s see what happens on Oct. 4.

OJR: What sort of goals have you set for the site?

Hausser: The situation in Burma is getting more and more quiet in the last days; not because of a better situation, but because the military is trying to avoid any outgoing communication.

We want to keep this “burning topic” on top in the media. The bloody pictures are getting fewer every day, and the media are losing their interest to report about the topic. We want so set a peaceful sign to keep it on peoples’ minds.

OJR: Do you have a sense of how effective the government shutdown of Internet and cell-phone lines has been? How long did it take to figure out that outside communications had been halted?

Hausser: We/the bloggers realized very quickly that there was no more connection to Burma. Hours later the media spread the news. And yes, it was effective. Most blogs about Burma are written outside Burma (see our blog list on f-b.org). the blogs inside stopped refreshing and the remaining bloggers are afraid for their lives. They have taken pictures of themselves down from their blogs so the government can’t find them. Everybody there is in danger.

OJR: What are citizen journalists in Myanmar doing now to get information out of the country? Have they been able to get around the government barriers? If so, how?

Hausser: Not sure. But we know that it is not easy. They talk/write less about Burma every day. We try to stop that.

OJR: How are the off-shore blogs and sites like yours dealing with the block of information flow?

Hausser: To be honest, currently I’m more and more dealing with interviews and communication than working for the page. The response is overwhelming, more than we ever expected.

OJR: You’ve really tried to spread the word with Wiki, Digg, Facebook, Flickr, etc. How successful have those social media tools been in spreading awareness?

Hausser: Facebook is not directly connected with us, but they are promoting the action. Top referrers are Stumbleupon and ko-htike.blogspot.com. We used Flickr for the graphics collection, and the wiki as a democratic element to collect ideas, translations and everything else.

OJR: Finally, do you have a particular, numeric goal in mind for the big Burma blog day on Oct. 4?

Hausser: No, nothing. The visitor counter is growing very rapidly, as are subscriptions (see the news page for updates). But like I said: This is more than we ever expected, and no one knows what’s going on today/tomorrow. But I’m sure it will be a lot!

OJR spoke with Dalglish about the heightened concern she sees from both journalists and the public about the culture of secrecy that has pervaded many parts of our government, as well as the status of a proposed federal shield law for journalists and some bloggers and a bill that its advocates say would improve administration of freedom of information regulations.

The beginnings of RCFP’s “secrecy beat”

OJR: Even before attacks of September 11, the Bush administration displayed a rare penchant for secrecy.

Dalglish: Right. [Attorney General Alberto] Gonzales, when he was the White House Counsel, tried to gut the Presidential Records Act [PRA], to essentially make it meaningless. There was the [former Attorney General John] Ashcroft memorandum interpreting the Freedom of Information Act. They were working on that well before 9/11. There was the Cheney energy task force meetings that they tried to put off-limits. They were pre-disposed to secrecy even before 9/11.

[Note: In June, 2007, the House Committee on Government Oversight and Reform issued a report alleging that senior Administration officials might have violated the PRA by using e-mail addresses assigned by the Republican National Committee to conduct official government business.]

OJR: How did journalists react to that predisposition toward secrecy in the very beginning?

Dalglish: Indifferently.

OJR: Indifferently? They didn’t see it as a real problem?

Dalglish: No, they didn’t see it as a real problem. They were caught unawares and they always thought, “Oh, we’re the only ones who care about that. Journalists are the only ones who care about that, so why even bother to report it?”

OJR: After 9/11, at what point did journalists get concerned. Was it the passage of the PATRIOT ACT?

Dalglish: Well the PATRIOT ACT doesn’t have much to do with information policy. And quite honestly, from my perspective, many of the things in the PATRIOT ACT are absolutely fine and absolutely necessary.

There were a number of things that happened after 9/11 that did impact the right of the public to know what was going on, but it wasn’t necessarily the PATRIOT ACT. I can really only think of one major area of concern in the PATRIOT ACT, and that’s section 215, which said that you could try to get tangible business information from any entity, and then, the librarians and the bookstore owners went nuts.

And we found out from the Attorney General that they were convinced that despite the Privacy Protection Act of 1980 that said you could not execute a search warrant on a newsroom, that because 9/11 was so special that the PATRIOT ACT would allow those search warrants to be executed on newsrooms.

OJR: Has anybody tried to do that?

Dalglish: No, not that I’m aware of.

OJR: There was information that had previously been public that suddenly got taken off-line after 9/11.

Dalglish: Yes. And there were rules that were implemented, executive orders that were written, there was laws that Congress did pass. For example, the law that creates the Department of Homeland Security exempted DHS from portions of the Freedom of Information Act. [RCFP has a detailed chronology of US government secrecy measures between 9/11 and 2005.

OJR: What motivated the Reporter's Committee for Freedom of the Press to start covering these attempts at secrecy as a distinct beat, with reports such as Homefront Confidential and your blog, Behind the Homefront?

Dalglish: The absolute certainty that the public wasn't going to learn nearly as much information as they used to, and that this administration was intent on placing valuable information off-limits.

Growing public support for open government

OJR: Where are we now in the effort to balance the legitimate need for secrecy with the public's right to know?

Dalglish: I think we're starting to bounce back a little bit. I think Congress has finally woken up. I think the media have finally woken up. I think the public is kind of waking up. They're asking very serious questions. I think the [Congressional mid-term] election in November [2006] was partly due to all of this stuff. People are going, “Okay, we gave you enough rope, and you hung yourselves. So know we’re gonna go in another direction.”

And I think the [June, 2007] Washington Post stories about Vice-President Cheney explain the passion for secrecy better than just about anything I’ve seen.

OJR: When you cite the Washington Post stories as a sign that the news media has awakened, are you saying that they haven’t been aggressive enough on these issues in the past?

Dalglish: No, there’s no question the press has not been aggressive enough on these issues. Many reporters have made the mistake of concluding the public doesn’t care about this stuff, and that it was quote-unquote inside baseball. But the public does care about this stuff.

And we’re starting to find out that yes, there is a need to keep some things secret. But when you keep some things secret with impunity, abuses of power occur.

OJR: What evidence do you have that there is widespread concern about this among the public?

Dalglish: I get letters; I get e-mails. Mostly, it’s what doesn’t happen. It used to be when I would go on television or on radio and whine about this, people would call in and say I was an unpatriotic jerk. Now, when I go on these TV shows or on these radio talk shows, people call in saying, “Oh thank God there are people like you! Where have you been?” It’s more of an attitude adjustment, rather than any concrete information I’ve been getting.

I’m not getting as many death threats, let me put it that way.

OJR: You were getting death threats before?

Dalglish: Oh, sure!

Current challenges facing journalists

OJR: How do you feel things stand legally in terms of civil liberties protections for reporters?

Dalglish: They’re chipping away in millions of tiny little ways. They’re trying to close down criminal prosecutions. They’re trying to keep us out of proceedings in Guantanamo. They’re trying to close down access to jurors. They’re trying to prevent us from finding out who it is we’ve kicked out of the country. The foreign nationals that we’ve deported because of some weird, wacky matrix system. They don’t want us to know anything about critical infrastructure, even to the point of ridiculous examples. They won’t even let you know — if somebody’s proposed to build a credit-card processing facility in Texas, and the local folks won’t even tell you what intersection it’s going on, because someone has told them that’s sensitive homeland security information. I mean there’s some really ridiculous things that are happening.

And, people are so worked up, and so frightened, that they’ve kind of let common sense fly out the window.

OJR: I recall that a few months after 9/11, I was teaching a computer-assisted reporting class, and we tried to get information on whether ground water had been contaminated around a particular plant. We couldn’t get the information, whereas it had been fairly easy to find that kind of thing out online before.

Dalglish: Yes, they took it down. They took a lot of that kind of information down, because, you know, a terrorist might use that to poison people! Well the same information a terrorist could use to do damage, citizens who live in that area might appreciate knowing so they can tell their children not to drink the ground water. It’s a total double-edged sword, and they’ve got to be so over-protective, that they’re not using common sense. How can you insist that the EPA clean up your ground water if you’re not allowed to know that it’s contaminated? It gets to be infuriating.

Legislative update

OJR: Reporter’s Committee for Freedom of the Press devotes a lot of its resources to keeping track of shield laws, sunshine laws and the like. How do we stand with regard to that?

Dalglish: The [proposed Federal] shield law might move in the House fairly quickly. We’re having problems with some members of Congress who are concerned that journalists are going to protect leaked national security information. So that’s kind of a sticking point.

The Open Government Act, sponsored by [Patrick] Leahy (D-VT) and [John] Cornyn (R-TX) in the Senate, and by [Henry] Waxman (D-CA) and some others in the House, should be a no-brainer, but [Jon] Kyl (R-AZ) has put a hold on that, and he’s single-handedly blocking it.

OJR: The “secrecy Senator.”

Dalglish: Yes, the secrecy Senator.

OJR: Can you talk just a bit about the Open Government Act, which is designed to strengthen the Freedom of Information Act?

Dalglish: It doesn’t do anything, as far I’m concerned, that’s all that controversial or remarkable. It put things back the way they used to be as far as shifting in reimbursing people who have to sue the government. It doesn’t create any new information that’s off-limits. It creates some new tracking procedures, and puts some teeth into the enforcement of the act, and hopefully will make it work better, make it more user-friendly.

I don’t think there’s anything in the world that should hold this thing up. But they are so pre-occupied by immigration right now, that I don’t think anybody’s in the mood to tangle with Kyl right now. [This interview was conducted on June 26, 2007; the controversial immigration reform bill was defeated on June 28.]

What journalists and the public should do to protect the public right to know

OJR: What should journalists be doing right now with regard to Freedom of Information issues?

Dalglish: I think what journalists should be doing, quite frankly, is reading our website every single day. They should be paying attention to the sunshine in government initiative. They should be paying attention to Open the Government.org. They should be paying attention to the Coalition of Journalists for Open Government. And they should be getting active in these FOI-related journalism groups.

Just stay informed, and I personally don’t think that it is a conflict for journalists to take a political position on something that has to do with the need for government to inform its citizens. Now, if you’re covering a committee in Congress that’s considering amendments to the Freedom of Information Act, should you be up there testifying in favor of the Act? No. But, what you should be doing is supporting the non-profit organizations that are trying to speak up on your behalf, to ensure your ability to do your job.

OJR: Are we doing an adequate job of making the public aware of these issues at this point?

Dalglish: We’re doing better. The American Society of Newspaper Editors has been working very hard the last two or three years on Sunshine Week. It started with newspapers, it spread to online and its spread to broadcasting. In March, right around James Madison’s birthday, we try to convey information to the public about why it’s important to support open government. Why it’s important on both the state and the federal level, and I think that’s been a remarkably successful project.

OJR: You’ve been in your job at RCFP for seven years now. In 2010, when July 4 approaches, what do you hope you will see?

Dalglish: I hope to see that the Freedom of Information Act has been amended; I hope to see that we have a reporters’ privilege – a shield law. And I hope to see that various news organizations and the non-profits are up there pro-actively seeking things from Congress rather than acting defensively.

At this writing, it appears as if the Bancroft family, which owns controlling shares of stock in the Dow Jones conglomerate, may be close to directing its board to negotiate the price of a final sale. Meanwhile, mogul Sam Zell has been buttonholing members of Congress in his effort to get waivers from the Federal Communications Commission that would permit the ownership of newspaper and television properties within the same market.

Both pending sales have met with criticism from activists and observers concerned about media consolidation. The editors of the Columbia Journalism Review spoke for many in the industry when they likened Murdoch to a scorpion, and pleaded, “We hope [the Bancrofts] find a way to keep this American treasure away from Rupert Murdoch, who will smile even as he raises the stinger.” The United Church of Christ and a coalition of civil rights and other groups have petitioned the FCC to stop Zell from obtaining the waivers that would make the Tribune bid possible.

While these issues have grabbed the headlines, the battle lines over media consolidation spill into other regulatory skirmishes over such issues as Internet radio, cross-ownership rules and the Net Neutrality debate. The debate has further intensified with advent of digital television in 2009, because the FCC will be auctioning off the portions of the broadcast spectrum currently used for analog television.

OJR spoke with two experts on media policy who differ strongly on consolidation and a host of other issues.

Mark Fratrick is an economist who has worked on broadcast regulation issues at the Federal Trade Commission and the National Association of Broadcasters. He is currently vice-president of BIA Financial Networks, a Virginia-based consulting firm. Craig Aaron is the press liaison or Freepress.net, a non-partisan think tank on media issues. Here’s what they had to say about the Dow Jones sale and several other issues related to preserving competition in the media marketplace. Their contrasting views highlight the ways in which technological change is creating new competitive realities and reshaping old debates about the tension between the media’s public service responsibilities and the economic imperatives of capitalist enterprises.

Issue: Dow Jones sale

Fratrik thinks Murdoch won’t sacrifice the Wall Street Journal on the altar of either profit or his brand of politics because to do so would be bad business practice. “I don’t think that Mr. Murdoch would seriously alter the quality and integrity of the Wall Street Journal. That integrity, that quality, that brand name is what the Wall Street Journal is. And Mr. Murdoch buys assets in order to improve the value of those assets and the value of his holding company. I find it hard to believe he would put that in serious jeopardy by diminishing the quality of such a thing.”

Issue: Net Neutrality

FreePress.net is one of the key players in the Save the Internet coalition, proponents of “net neutrality.” Net neutrality advocates say broadband providers are looking for ways to force consumers to pay extra fees for high-speed internet access and other premium services. They want Internet access to be treated as a public resource, much as telephony was 100 years ago. In the early decades of the 20th century, industry leaders and public policy makers made universal telephone service a priority, leading to a chain of business moves and legal decisions that culminated in the Communications Act of 1934.

In 2006, the Communications Opportunity, Promotion, and Enhancement (COPE) Act (HR 5252), a bill that provided for some net neutrality protections passed the House but died in the Senate.

Aaron worries that without FCC action, consumers could find their internet access restricted in the same way that cell phones are limited now. “If you look at your cell phone plan, there are a lot of restrictions in place. Network neutrality is not allowed. They [wireless access providers] can interfere with who gets to you and what kind of information you can get. So we’re looking to ensure network neutrality.”

That argument doesn’t sit well with experts such as Fratrik, who describes himself as “very free market-oriented.” In fact, Fratrik exclained, “Net neutrality makes my hair hurt!” Fratrik echoes the industry-led “Hands Off the Internet” coalition, which argues that “Net Neutrality” is “expensive and unnecessary. Net neutrality opponents say that current laws already provide adequate protections for consumers. Further, they say, the changes that Neutrality advocates want would add expense without benefitting consumers.

It’s not easy to find analyses of the issue that don’t lean to one side or the other. Project Censored has accused the mainstream media of largely ignoring the net neutrality debate in 2005 and 2006, calling it the most censored story in its 2007 list. The issue may get more coverage as the 2008 Presidential election approaches, especially since several candidates have already declared themselves in favor of Net Neutrality.

Issue: Concentration of Media Ownership

The Telecommunications Act of 1996 loosened some of the rules on, for example, how many radio stations a company could own, both nationally and locally. To Fratrik, that regulatory relief was essential: “I think that the competitive environment that both radio and television stations now find themselves in… is incredibly remarkable. Without the deregulation of the ’96 Act, … broadcasters would be even in a worse position than they are now.”

The actual development and implementation of regulatory rules in the years since 1996 has been contentious. In a 2004 decision in the case Prometheus v. FCC, the Third Circuit Court of Appeals stopped plans announced by the FCC in 2003 to further loosen caps on the number of radio, newspaper and broadcast outlets that can be owned in one market. In 2006, the FCC announced that it was seeking public comment on how to respond to the order. In 2004, Rep. Maurice Hinchey (D-NY) introduced the Media Ownership Reform Act, which would roll back much of the deregulation of the last two decades, break up some media conglomerates, and re-introduce the Fairness Doctrine. So far, the bill has not made it out of committee.

The transition to digital television brings a new twist to the consolidation debate with the FCC’s forthcoming auction of the analog bandwidth that over-the-air television broadcasters won’t be using any more. Digital television, which will become standard in 2009, also promises to create a host of opportunities for new interactive media services. FreePress.net’s Craig Aaron is worried that, “the way the auction is taking shape, it very well could be that the same companies that already dominate our broadband market – the phone and cable companies. Phone companies, in particular, are in a position to swallow up this spectrum.”

FreePress.net and its allies are urging the FCC to follow “open access rules” that it says will lead to greater consumer access, more innovation, and more marketplace competition. Those rules include requiring licensees to make bandwidth available, at wholesale rates, setting aside a portion of the spectrum for unlicensed wireless services, and ensuring that customers will be able to connect to wireless services without having to purchase a device endorsed by their wireless carrier. They also support passage of the Wireless Innovation Act of 2007, which would turn these recommended rules into law.

Issue: Diversity of Media Ownership

One of the reasons, the Third Circuit ruled against the FCC in the Prometheus case is because it rejected the FCC’s claim that it could loosen ownership restrictions without further eroding the diversity of media ownership. That lack of diversity remains a serious issue.

Aaron and others point to the June 2007 report, “Off the Dial” as evidence of the the persistently low representation of women and people of color among the owners of the nation’s broadcast outlets. According to that report, African Americans, Latinos and Asians own only 7.7 percent of the nation’s full-power commercial broadcast stations, despite representing about one-third of the US population. An October, 2006 study, “Out of the Picture,” found people of color similarly scarce among commercial television station owners. Women constituted just under 5 percent of television station owners, despite the fact that just over half the US population is female.

Fratrik says diversity of ownership and opinion is “always a valid concern.” However, he adds, “how it should be handled is another question, insofar as how you may hamper the ability of certain stations to operate for not allowing groups to acquire properties, troubles me. I think it’s a very good concern; I think it’s an important part of a democracy. It’s also an important part of communications policy. I’m always fearful if that is the primary driver in some proposals.”

Fratrick added, “If you just look at over the air broadcasting as your group of outlets, then there may be not as much diversity as one would like, but on the other hand, I think the broader media environment should be the environment, what we refer to as the media ecosystem that one should look at. Given the thousands and really unlimited number of outlets that one has available, I think there’s a tremendous amount of diversity.

“I think the current regulatory scheme is fine, insofar as providing enough diversity in that broader media ecosystem, that broader marketplace. I’m thinking of satellite radio, I’m thinking of the Internet, I’m thinking of video-on-demand, cable systems, the hundreds of newspapers, blogs – every day there’s a new avenue.”

“Not everybody has a broadband connection to the Internet, and not everybody has cable, and certainly not everybody subscribes to satellite radio. But when I take a step back and ask, what’s available to the American consumer, and what’s available for free, what’s available for a fee, what’s available online, I’m just wondering, what else more can we be doing?”

Aaron has some ideas that he thinks will lead to more diversity among media owners. “Well, he says, “you could lower the ownership caps, for a start. You can create incentive systems for those properties to be sold to under-represented communities.”

The Outlook

While Fratrik doesn’t expect MORA any bill like it to surface any time soon, he adds, “I’m always concerned when Congress talks about this, because I’m always fearful that they may come back and re-regulate, and I think that would be an unwise decision.”

Freepress.net disagrees. Aaron maintains that whether it’s the Internet, the wireless spectrum, cable or satellite, “they’re all a part of the public airwaves. And it’s the FCC’s job to make sure these airwaves are used in the public interest. And the public interest is lower prices, more options, more space to get faster Internet service, to connect their devices and do different things. Unfortunately, the history of media policymaking has largely gone in a different direction, and that’s taken this great public resource and privatized it in a way that it doesn’t serve the interest of everybody, and it does serve the narrow interest of a few big companies.” Aaron insists that the policies he and his colleagues recommend will yield “benefits in terms of new services, new products new competition.”

Whatever your philosphical predisposition, one thing is clear: the decisions taken by the FCC in the coming weeks and months will go a long way toward shaping the media environment for both journalists and news consumers for years to come.

Certainly, a lot of people are thinking about it, as evidenced, for example, by the discussion generated by Scooter Libby segment of the PBS Frontline series, News War.

OJR sat down with Ginensky to find out why she says that the Libby trial, “has changed journalism as we know it.”

OJR: You’ve said that “After this trial, even if privilege can be protected in federal and state courts, many may not perceive it.” What did you mean by that?

Ginensky: We all grew up in the “Deep Throat” era and thought that everything is protected and confidential. What we’re going to see, and I’ve already seen it myself, is lawyers – both on the civil and criminal side — thinking, ‘Oh reporters have to testify – that’s what the Libby case is all about. And it’s obvious that while there may be certain instances in certain courts where reporters have to testify, but in many states there are strong protections… shield law or common law protections. In federal courts there are still some protections, and some federal courts have been stronger than the DC court was.

So, I think lawyers’ instincts are going to be to serve a subpoena whenever they think journalists have information about anything – any information, whether or not it’s been published, whether or not it’s confidential, or whatever, they’re going to try to get reporters to testify.

Then I think you’re going to face the fact that sources have seen this group of reporters walk into the Libby trial and testify and be the number one and two and three witnesses against Scooter Libby. That is a position that I think reporters have always tried to avoid, to be a witness against people who are talking to you.

In the Justice Department, I think there has been a great reluctance to serve subpoenas on reporters – I think that’s changing. But… the fact that people think that the protections have been undone [doesn’t mean] that they have been undone.

We need to fight against that to the extent possible.

OJR: One of the extraordinary things about this case is that you have the White House and the prosecutor using the unprecedented tactic of getting sources to sign confidentiality waivers.

Ginensky: It is unprecedented. But what I have argued before is that the privilege is not the source’s; the privilege is the reporter’s. It doesn’t matter if my source is willing to speak, if I’m a reporter. It’s whether or not I will waive the privilege.

And I, as a journalist, have good reasons not to want to waive the privilege in addition to the source’s reasons, because it will chill the next source. I have won on that argument in both Federal and state courts before. Obviously this argument must have been made and did not work in [the Libby] case. If sources believe that their employers can get these waivers out of them, then they’re probably not going to be whistleblowers.

It seems to me that in the face of an attack like this, what we ought to do is to stand up and try to protect [reporters’ privilege] as much as possible, rather than lay down.

OJR: You say that there ought to be a conversation in every newsroom about the rules for granting confidentiality to a source. It’s been suggested that the practice of granting confidentiality has changed over the years from being an incentive that reporters sometimes use to coax reluctant interview subjects to being a privilege that sources expect and use to put out information for their own purposes.

Ginensky: I always understood, both from the dealings with journalists, and also from arguments that I’ve made in court, that it’s…used almost as a matter of last resort. We try to get people on the record, and not just take information off the record, because there are recognized dangers with this type of information.

And then, you may find yourself in a situation like Judith Miller, where you haven’t even published [your information] and you’re faced with having to try to protect somebody who you’ve really never tried to get on the record, and you put yourself, I think, in a bad situation.

OJR: This all comes about when the traditional interpretation of the Branzburg case is being challenged.

Ginensky: We’ve argued for years that the Branzburg case does not mean that there is no protection. But more and more courts – federal courts have found to the contrary. All the efforts to get federal shield laws are really important.

OJR: You’ve also suggested that reporters need to think about their methods and frequency of note-taking.

Ginensky: I think that each journalist needs to think about when they’re taking notes. There are journalists who always take notes – whether it’s on the record or off the record, and then they make a note afterward whether the conversation is on the record. And then they keep the notes, pretty much forever, and then they’ll be like Judy Miller – they’ll find them under desks, in shopping bags.

And that’s not a place you really want to be, because then you’ll have those notes being used to go against the memory of your source… Most sources are not likely to have that accurate a recollection, not because of anything nefarious, but because people just don’t recall the details of conversations. And given any time passage, most of us can’t recall. And so we have the journalists’ notes being used to impeach our source, and that’s a really terrible picture to put out there, and a really terrible position to put your source in.

So I think that people need to think initially, “Am I going to make notes for this conversation with this confidential source where there’s a likelihood I might end up in a battle about my notes?” Maybe you don’t make notes at all. Once you get a subpoena, you can’t get rid of your notes – that’s the destruction of evidence. So you have to think about it, I think, right from the beginning.

OJR: Many journalists hold on to their notes both in case there are questions, and because they might want to re-use the research for another project.

Ginensky: Right. And I’m somebody who defends a lot of libel lawsuits, and sometimes notes can be helpful. Most of the time, they could be helpful, but you’ve got to weigh the possibility of getting a libel lawsuit now against the possibility of a subpoena, and be thinking about these things ahead of time. You can never predict where your libel lawsuit is going to come from, nor predict where every subpoena is going to come from.

But in both instances, you can make some calculated decisions. I mean, I have been more surprised about libel lawsuits, but subpoenas – there are areas where people probably should think about whether they’re likely to get a subpoena. If you’re dealing with a whistleblower in a government agency, think about it ahead of time.

OJR: That gets pretty tricky when it comes to things like e-mail.

Ginensky: Yes, you have to worry about e-mails for your subpoenas; you also have to worry about your phone records, because there have been subpoenas to phone companies where you don’t even have control. Then, the fact that there is this phone record with you and this confidential source could reveal the confidential source. So you might want to think about some way to communicate other than the telephone. Hopefully, it won’t involve getting in the basement or parking garage like Deep Throat!

OJR: You’ve said the credentialing of bloggers to cover this trial is also significant.

Ginensky: The credentialing of bloggers is significant because it places them on a similar level as mainstream journalists. However, this event also raises some questions about the treatment of bloggers. For example, if they are treated as journalists, then will the standard of conduct practices that applies to journalists be applied to them as well in relation to liability issues? If you are considered a journalist, then you’re going to be held to a journalist’s standard of care in a libel lawsuit. I would suspect not all bloggers know much about the standard of care of how other journalists work. On the other hand, if they are considered journalists under shield laws, then, to the extent that they have confidential sources and the statutes that protect them, that’s a good thing.

OJR: Given what you’re saying, anyone who’s going to do journalism really has to have access to quality legal advice. When it comes to solo journalists, bloggers and small publishers, you’re not available.

Ginensky: Right, and I don’t have an answer for that. I would think for a lot of bloggers, it means getting insurance. I worry about risk, and I can’t say I have an answer for that. In terms of how they protect themselves, there should be a lot of reading and discussion. I would think that journalists who are in newsrooms. If they say to somebody, “I’ll protect you and give you confidentiality,” are they really willing to go to jail for that person? That’s a real problem, I would imagine.”

Whatever the verdict, we’ve all been sentenced to deal with a new with a new way of thinking about this, and the recognition that sources are going to think of it differently, and courts of going to think of it differently. In my view, we shouldn’t give up, but we should be proactive in the steps we take.

Some of the experts we spoke to registered their strongest concerns about the Bush administration’s aggressive stance toward journalists. “George Bush is exceedingly bad news for this country on almost every front, and one of those fronts is his contempt for the press,” said David Rubin, Dean and Professor of the S.I. Newhouse School of Public Communications at Syracuse University. “He and his Justice Department, prosecutors, and the whole tone that he has set – are more than willing to use the subpoena power to get sources and get confidential information and basically, in his view, put journalists in their place.”

However, John Hartman, a journalism professor at Central Michigan University, predicted that in 2007, “The Bush Administration will be forced to back off on and drop its investigations and intimidations of journalists and news organizations as it is forced to spend time defending itself from various Congressional investigations, including those that might be preludes to impeachment.” Indeed, there are news reports saying that the President is beefing up his legal team in anticipation of Congressional investigations.

As critical as he is of the President Bush’s actions, Rubin doesn’t share Hartman’s expectation of change; “I don’t think anything changes him.” Rubin said it would not surprise him to see more journalists jailed in 2007: “Not only ultimately jailed, but more subpoenas for information, more subpoenas of phone records – whatever tactics [Attorney General Alberto] Gonzales and the Justice Department can come up with, they will.”

Hartman said a Congress led by Democrats will generally be more supportive of press freedom, and may even be open to passing a federal shield law, such as the Free Flow of Information Act sponsored by Sen. Richard Lugar (R-Ind.). Hearings were held on the bill last September, but “Congress might pass a federal shield law, but Bush would veto it under present circumstances,” Hartman wrote. “If he decides to govern from the middle and try to repair his public opinion ratings, Bush might allow it.”

But Rubin disagreed, noting, “[T]his is an issue that the Senate and the House have considered regularly since 1972, since the Branzburg case. So that’s almost 35 years ago, they haven’t done it yet. The situation is now far more complex than it was in 1972, now that you have online journalists and bloggers, which raise definitional issues. The mood of the country is not nearly as supportive of journalists as it was back then. The Congress has so much else on its plate this year, and it’s likely to be a highly contentious place that I just don’t think this is going to rise to the surface as an issue to consider. For all of those reasons, I would be shocked if a federal shield law was passed next year.”

In fact, according to a blog entry by CBS News legal consultant Andrew Shelton, Lugar’s bill died in committee last year precisely because Justice Department lawyers wanted to be able to compel reporters’ testimony in the forthcoming trial of Lewis “Scooter” Libby, who is charged with perjury and obstruction of justice in the illegal disclosure of the identity of CIA operative Valerie Plame.

In the area of copyright law, while big changes are not expected, there are still “many issues, both in terms of journalists reproducing content from copyrighted sources and, more significantly, having their work reproduced without permission,” said Jon Garon, Dean and Professor of Law at Hamline University School of Law in St. Paul, Minnesota. Those issues range from common internet practices that can expose journalists and bloggers to charges of copyright infringement to steps that online media producers may need to take to protect their work.

For example, bloggers frequently embed video or audio from sites such as YouTube or Odeo. But Garon said that even when the original source of the content is acknowledged, those bloggers may still be subject to charges of copyright infringement. While portal sites such as Google Video require that people uploading video to their site attest to their rights to the content they post, Google can’t guarantee that the posters are telling the truth. Someone who republishes that content without a demonstrable effort to prevent infringement can still be sued, Garon said.

Of course, most journalists use copyrighted material under the “fair use” provisions of U.S. copyright law. Those provisions allow for the republication of small portions of a copyrighted work for such purposes as news reporting, comment or criticism, or classroom teaching. The fair use doctrine has a long and venerable legal history, but Garon warned “the parameters of fair use are inherently fact-specific.” Further, as OJR reported last February, some experts are concerned that the improper use of cease-and-desist letters by copyright holders has caused online content to be removed.

According to Garon, one copyright issue that caused some controversy in 2006 will likely be ignored in 2007. That’s the law governing “orphan” works – works published before 1923 for which there’s no apparent copyright holder. Under current law, these orphan works are still under copyright – and anyone who uses them risks a lawsuit. In 109th Congress, Rep. Lamar Smith (R-Tex.), then chair of the Intellectual Property Committee of the House of Representatives, introduced the Orphan Works Act of 2006, which would permit their use when it can be demonstrated that a good-faith effort has been made to contact the copyright holder. Under fire from organizations representing professional photographers and others, Smith ultimately withdrew the bill from consideration, despite support from the American Library Association and others.

As to ownership issues, according to Hartman, “deregulation that would result in the lifting of cross-ownership restrictions is less likely to happen as Democrats are less comfortable with media conglomerates. Yet Democrats might support legislation that would make it easier for newspapers to survive and allow cross-ownership in circumstances where the newspaper would fail otherwise.”

Bloggers faced new legal challenges in 2006, both in the United States and internationally. Josh Wolf landed in federal prison for refusing to turn over unpublished video of a demonstration to a California grand jury. Hao Wu, who was imprisoned for five months by the Chinese government, apparently in connection with video that he was shooting for a documentary about underground churches in that country. Libel suits against bloggers are on the rise. And in December, an Australian court ruled that linking to copyrighted sound recordings can be illegal if it makes it easier to gain improper access to that material.

For Robert Cox of the Media Bloggers Association, these developments illustrate that many bloggers perform the same newsgathering functions as professional journalists, and thus require the same level of education, access and legal protection. His organization has spearheaded a training and certification program that would ensure that bloggers understand and adhere to high legal and ethical standards. MBA has negotiated agreements that will allow certified bloggers to obtain press credentials to cover such events as government press conferences and briefings.

Finally, “there’s something that’s extremely important in all of this, and it almost never gets talked about, Cox said. “Let’s start with this: Freedom isn’t free. If you’re going to publish – and bloggers are publishers – and you can’t back up what you’re writing with lawyers and resources to pay for all of that, you’re not going to last very long.” That’s why, Cox said, the MBA is negotiating with the insurance industry to offer liability insurance that bloggers can tap in the event of a legal fight. “As blogging and citizen journalism develops over time, you need to have access to this kind of support.”

China, Eritrea and Cuba top the list of governments responsible for jailing journalists, but the United States is responsible for incarcerating two journalists without charges, as part of the War on Terror. Bilal Hussein, a free-lance photographer for the Associated Press, has been held by US Security forces since April 12, 2006. Al-Jazeera cameraman Sami al-Haj was arrested December 15, 2001 by US forces in Afghanistan; he is currently held at Guantanamo Bay.

According to the 2006 Press Freedom Index compiled by another journalists’-rights group, Reporters Without Borders, the United States’ treatment of journalists placed it at 53rd on its press freedom list, tied with Botswana, Croatia and Tonga. China, Cuba and Eritrea ranked 163, 165 and 166 on the list, making them the countries with third, fifth and sixth most repressive records in the area of free expression. When the RSF began producing its list five years ago, the US rank was at 17.

Abi Wright, CPJ’s communications director, spoke to OJR about the new study of jailed journalists:

Wright: I think the rise in the number of Internet journalists on our prison list this year is startling, and reflective of trends that we’ve been following since 1997, when we documented the first jailing of an Internet writer. I think there’s two things going on. First of all, there are more people writing and doing journalism online. Secondly, the perennial offenders, China and Cuba , in particular, are just saying an increasing, or ever-present, I should say, intolerance towards reporting and dissent in any form, and online in particular.

OJR: You’ve pointed out that one in three of the journalists now in jail is an Internet blogger, web-based editor, or online reporter, and a large number of these people are not necessarily paid journalists, but citizen journalists?

Wright: Exactly. The nature varies from country to country. In countries like China, access to work as a journalist is very restricted. There’s party membership and all kinds of memberships required and it’s highly regulated and restricted. Writers and citizens have found the Internet to be one way that they can get information and transfer information. In Cuba, which is a slightly different example, a lot of journalists whose work ends up online, they actually telephone or transmit the information through different means, but it ends up being published online because they have no other way of just doing journalism there through official routes. So it’s reflective of the media environments in all of those countries.

OJR: Many of the people you are talking about are being held in secret locations and without charges. How do you get information about what’s happened to them?

Wright: Well, that is another sort of regrettable trend that we have documented, that 20 of the journalists on our imprisoned list this year, or 15 percent, are being held without charge. We have sources in countries like Eritrea, where we are able to verify information about journalists there. But it’s very difficult. We have reports that [several journalists held in Eritrea] may have been killed or may have died since they’ve been in prison. So, it’s challenging to get information about them, but it’s a real priority for us, absolutely. Journalists like [AP] photographer Bilal Hussein, and the cameraman for al-Jazeera, Sami al-Haj, we work closely with news organizations who have had employees detained to get information. And we also appeal directly to the US government about these cases.

OJR: Have international human rights organizations, the Red Cross, the UN or similar organizations been able to get to these people to verify their well-being?

Wright: In the case of Sami al-Haj, I know his lawyer has been in touch. He has a lawyer who is in communications with him. Communication with Bilal Hussein has been more problematic. He’s been held since April. We have called repeatedly on US authorities to make public the information that they allegedly have on these individuals and to either charge them, or release them. Different officials have assured us that they have evidence of some activity that could be seen as criminal, but we just don’t know what that is.

OJR: Leaders of the new Congress that will take office in January have promised new investigations into various aspects of the conduct of the War on Terror. Do you know whether the treatment of journalists will be part of that investigation?

Wright: I don’t know whether the treatment of journalists or international press freedom will be an issue for them, but I can tell you that during the confirmation hearings for [newly-confirmed US Defense] Secretary [Robert] Gates, Senator Warner of Virginia specifically asked about journalists’ safety, and mentioned CPJ. So we know that it is on lawmakers’ minds. And we are certainly doing everything we can to make sure that the situation for journalists, especially imprisoned journalists, in countries like China, Cuba, Eritrea, and also of course, those in US custody — that these cases are brought to the attention of lawmakers.

OJR: One case that CPJ has expressed concern about is the murder of Brad Will, an independent journalist who was gunned down October 27 while filming a protest by striking teachers in Oaxaca, Mexico . Some have called for the US to get involved in the investigation. What’s CPJ’s position?

Wright: My understanding is that the most recent development in that case has been very disturbing — the individuals who were arrested and charged with his murder have been set free.

OJR: Right.

Wright: We’ve been very active in Mexico, where there has been a string of murders, especially along the [US-Mexican] border area, where there’s known drug trafficking. We called on Mexico to appoint a special prosecutor for crimes against journalists. Under Pres. Vicente Fox, such a prosecutor was appointed, and I know that there is momentum to bring these crimes to a federal level, which would help expedite the prosecution of these cases. So from CPJ’s standpoint, we are pressuring Mexican authorities to bring those responsible for the murder of Brad Will to justice.

OJR: Any final thoughts that you hope readers will take away from this report.

Wright: I think it reflects a real change in the journalism landscape, when you have the second category of journalists behind bars being online journalists that shows a tremendous growth over the last decade. I think there’s no question. I think there’s no question, especially in Western democracies, but also in these other growing developing countries, that the Internet is a major conduit for information, and it will continue to be so. We will be fighting government attempts to crackdown on this as much as we can.

When the Internet was formed, the idea behind it was that it would be impossible to control and to censor. These governments are challenging that notion. I think it’s important for groups like CPJ and other members of the online community to remain vigilant in publicizing these attacks on journalists.

But Wolf’s willingness to go to prison rather than turn over unpublished video of a July, 2005 anti-globalization protest in San Francisco to a federal grand jury has earned him the support of journalists and civil liberties advocates across the United States. Prosecutors say they need the video outtakes to help them determine how a police officer was injured and a police car was damaged. Wolf and his lawyers say the video contains no information about the alleged crimes, and that as a journalist, he should not be compelled to turn them over. Further, they charge, the prosecutors’ actions in this case endanger not only the First Amendment rights of journalists, but the civil liberties of ordinary citizens with dissident political views.

After a six-month court battle that has gone as for as the Ninth Circuit Court of Appeals, Wolf was imprisoned on charges of civil contempt on September 22, 2006 at the Federal Correctional facility in Dublin, California.

“As unconventional and non-traditional as [Josh Wolf's] work in journalism may be in many respects, he is contesting an age-old argument… and that’s that journalists never should be arms of law enforcement,” says Christine Tatum, president of the Society of Professional Journalists. “Josh has, at great personal cost, taken quite a stand – an admirable stand, and he has said…, ‘I am not divulging unpublished, unedited, unaired material…for a grand jury’s review. And we stand wholeheartedly behind him.”

So much so that the SPJ donated $30,000 for Wolf’s legal fees and convinced his lawyers to cap those fees at $60,000. Tatum said the grant is SPJ’s largest-ever award from its legal defense fund.

According to an e-mail from Luke Macaulay, a spokesman for the U.S. Attorney’s office, “The incident is under investigation so that the [Grand Jury] can determine what, if any, crimes were committed… As we have argued in our court filings, the GJ is therefore entitled as a matter of law to all of the evidence in Wolf’s possession related to the demonstration. Six separate judges or panels have now ruled unequivocally that we have lawfully issued a subpoena for a legitimate investigative purposes, and that the material in question should be furnished to the grand jury.”

The case law on journalists’ efforts to withhold information from grand juries rarely favors reporters. The most frequently cited precedent is Branzburg v. Hayes, a 1972 Supreme Court case in which it was determined that, with rare exceptions, journalists have no greater protection than other citizens when it comes to complying with a grand jury. The exceptions are when the prosecutor’s actions can be reasonably considered harassment, or when disclosure would violate the journalists’ Fifth Amendment protection against self-incrimination.

Coincidentally, at the time Branzburg was handed down, the presiding judge in Wolf case, William Alsup, clerked for Justice William O. Douglas, author of a key Branzburg dissent. Douglas wrote:

“Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens.”

However, in a redacted transcript of Wolf’s June 15, 2006 hearing before Alsup, the Judge departed from Douglas’ view, declaring, “The U.S. Supreme Court said there is no journalist newsman’s privilege under the First Amendment.”

For Wolf’s supporters, one of the major problems with his case is the fact that it’s being prosecuted in Federal court. Normally, they maintain, such a case would be tried at the state or local level, where California’s shield law would apply. That law protects journalists from being required to disclose unpublished information gathered for a news story. According to news reports, federal prosecutors say the case falls within their jurisdiction because the San Francisco Police Department receives federal funding and thus, the damaged police car is federal property. In an August, 2006 interview, Wolf asked, “If an S.F. police vehicle is considered federal property, then what isn’t federal property?”

Tatum agreed. “That this is a ‘federal’ case is absolutely positively laughable,” she said, adding, “This is just an example of the federal prosecutor over-reaching to make a point, and to stick it to the news media, just to see if he or she can.”

But according to Macaulay, “This office did not initiate a federal investigation in order to circumvent the California State Shield laws.” Besides, he noted, the September 1 ruling handed down by the 9th circuit court declared that Wolf failed to prove that he met the California law’s definition of a journalist – someone connected with or employed by a newspaper, periodical, wire service, press association or other recognized news outlet.

Wolf’s status as a journalist has, indeed been open to debate. Part of the problem is that existing law hasn’t caught up with the ways in which the Internet has affected the newsgathering process, according to David Bodney, a media lawyer with the Phoenix office of the law firm of Steptoe and Johnson, and an adjunct professor of media law at Arizona State University. “Legislators are struggling with how best to define journalists for the purpose of establishing a statutory privilege,” he said.

For Jane Briggs-Bunting, director of the Journalism program at Michigan State University, the problem is Wolf’s objectivity. “You can’t step in and out of being a journalist,” she maintained.”You can’t become an advocate. ” Tatum added, “There is a degree of discomfort that I’ve felt with some of his assertions, as far as viewing himself as an advocate. I think that it’s very important for online journalists to begin to understand.. that it’s very, very important that you do maintain some sort of objectivity and distance.”

However, Wolf’s lawyer, renowned First Amendment advocate Martin Garbus says the government isn’t really after information about the alleged crimes committed at the demonstration. According to Garbus, “This was the use of an FBI anti-terror law to get information on people they can’t get information about, such as anarchists. They know he knows nothing about the actions involving the police car.” Garbus says what federal officials really want is to know who the demonstrators are. He calls the prosecutors’ actions, an “abuse of the grand jury,” and an “expansion of the anti-terrorism investigation to other dissidents.”

For this reason, Garbus maintains that Wolf’s case is very different from that of former New York Times reporter Judith Miller, and San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, all of whom were jailed for refusing to reveal confidential sources to a grand jury.

Miller, who served 85 days for withholding information from investigators looking into the Valerie Plame leak, is among Wolf’s supporters. In August, 2006, Miller videotaped a statement supporting Wolf outside of the prison where he was held pending a bail request. “I feel that the Josh Wolf case and my case and others like it are really going to have a chilling effect on the press,” she said, “and a chilling effect on the willingness of sources to come forward, to report instances of wrongdoing or abusive behavior by government or powerful corporations.”

Miller, Tatum and others consulted for this story insist that Wolf’s case demonstrates the need for passage of a Federal shield law, such as the proposed Free Flow of Information Act currently before the U.S. Senate. That measure, sponsored by Sen. Richard Lugar (R-Ind.) would limit prosecutors’ power to compel journalists’ disclosure of confidential or unpublished information. In the case of a federal criminal investigation, the government would be required to demonstrate that the information is essential to solving a crime and cannot be obtained any other way. But passage of the law won’t occur any time soon: consideration of the bill has been postponed after the Justice Department objected to provisions concerning the disclosure of national security information.

Tatum said, “The Circuit Courts are a big mess, in terms of the way they’ve interpreted Branzburg v. Hayes.” Indeed, the a summary of district court rulings from the First Amendment Center reveals wide variations in interpretation. Decisions from the Sixth and Seventh Circuits reject the notion of journalistic privilege, and for the Eighth Circuit, it’s an open question. The other courts recognize varying degrees of “qualified” privilege. Tatum and others insist a federal law would set a consistent standard that everyone can follow.

Wolf has said that his next step is request an appeal en banc — a hearing before the full panel of judges on the Ninth Circuit. But even his Garbus is not optimistic. In a September 29, 2006 post to Wolf’s blog, he lamented, “Unfortunately, the probabilities are that [Wolf] will wind up being the longest-jailed journalist in America.”