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ethical standards and accountable to
no one.
Whether existing shield laws in the
states will cover bloggers and other
nonmainstream journalists remains an
open question and very much depends
on the particular statutory language
and the courts’ interpretation of it.
Although a California court ruled
that the state shield law protected the
identities of operators of a blog that revealed
Apple Computer’s trade secrets
on the ground that their publications
constituted “news,” the Ninth Circuit
U.S. Court of Appeals refused to recognize
that blogger and self-described
anarchist Josh Wolf was a journalist
under the same law, because he was
not “connected with or employed by”
a news organization.
Law enforcement officials at the
Republican National Convention in
September 2008 collectively threw up
their hands and declined to make a distinction,
detaining or arresting dozens
of journalists, both “mainstream” and
“citizen,” swept up while attempting to
cover and report on the demonstrations
and protests in Saint Paul. Of course,
the Internet made possible “real-time”
and worldwide distribution of reports
of the protests. 1
Digital technology has facilitated
newsgathering in many ways. But
A screen shot from a YouTube video of the arrest of
“Democracy Now!” radio host Amy Goodman at the
protest during the Republican National Convention.
56 Nieman Reports | Winter 2008
its impact has
not been entirely
positive. For example,
in theory,
the digitization
of government
records, coupled
with the ability
of anyone with
a computer and
a modem to gain
easy access to
them, should
have been celebrated
as a welcomeopportunity
for meaningful
citizen oversight.
But judges and
legislators, driven
by fear that such
access would facilitate
illegal
conduct ranging from identity theft
to employment discrimination, have
used the threat of it to justify curtailing
access to these electronic files.
It doesn’t stop there. Judges also
cite their discomfort at the idea that
someone logging on from a distant
location, having no “legitimate interest”
in the local community, will amuse
himself by trawling through court
or real estate records and publishing
them online. They worry
that citizen journalists
with cell phone cameras
will invade courtrooms and
post trial footage online, a
practice they consider both
disruptive and undignified.
Although they might support
the concept of access
to government records and
proceedings in the abstract,
once it becomes cheap and
easy the gatekeepers began
to question its wisdom.
Information, it seems, is
1 YouTube video about Amy Goodman’s arrest is at www.youtube.com/
watch?v=sBjcqwQgF7Q&NR=1.
AP photojournalist Matt Rourke was covering police arresting
protesters at the Republican National Convention when he was arrested.
One of the last images on his camera’s memory card before
he was arrested shows a police officer pressing down with his knee
on the neck of a protester whom he is handcuffing. Photo by Matt
Rourke/The Associated Press.
just too valuable—or too
dangerous—to entrust to
a blogger.
None of these consider-
ations should drive legal policy. Rights
of access, or freedom of expression, are
not, and should not be, conditioned
on some government official’s idea of
what constitutes “responsible” journalism.
Judges and legislators should
continue to follow the principles that
have protected the press, and the
public’s right to know, for more than
200 years. But at the same time, those
who publish in the new media and
are always quick to invoke the First
Amendment are challenging so many
things held sacred.
The question confronting all of
us—given the tenor of our times and
the judicial decision-making we are
seeing—is whether the First Amendment
will survive this challenge. �
Jane Kirtley has been the Silha Professor
of Media Ethics and Law at
the School of Journalism and Mass
Communication at the University of
Minnesota since August 1999. Prior to
that, she was executive director of The
Reporters Committee for Freedom of
the Press in Arlington, Virginia, for 14
years.