The Digital Journalist
We Need To Talk...
October 2006

by Mark Doremus and Karen Slattery

At this writing, Josh Wolf is sitting in a federal prison in Dublin, California.

He's there because he refuses to turn over his video outtakes of a possible crime in progress to a federal grand jury.

Wolf is an outreach coordinator for a community college cable-television station. He calls himself an independent journalist and says he has contributed to Bay Area Indymedia and to a neighborhood paper, the Haight Ashbury Beat. He is also a self-professed anarchist who participates in protests and street theatre, and posts videotapes of those activities on the Web.

In July 2005, Wolf was videotaping demonstrators in San Francisco who were protesting the G-8 Summit. He sold some of the footage to a local TV station. A federal prosecutor thinks his outtakes might reveal the culprits who vandalized a police car and struck a cop during the event and wants his tapes to present to a grand jury.

His lawyers argue that Wolf is a journalist who should be shielded from any legal requirement to surrender his outtakes. But the judge in the case says there is no federal shield law — and the California shield law doesn't apply because the subpoena for Wolf's tapes was issued by a federal grand jury.

Whether there should be a federal shield law is a topic for another day. (For the record, we believe that there should be.) Today, we are pushing for a national conversation about who counts as a professional journalist.

Shield laws are necessary from the journalist's perspective because they allow journalists to protect their confidential sources. Sources are presumed to be less likely to speak to journalists about matters related to governmental corruption and other kinds of issues if they fear that they will suffer personally as a result.

Shield laws also protect the editorial process of newsgathering and publication by allowing journalists to withhold their notes and outtakes. The logic goes like this: people on the street might block reporters and photographers from gaining access to news events or refuse to give them information if they knew that a journalist's notes or videotapes could be seized by the cops and wind up as evidence in a court of law.

Shield laws assume that it is in the public interest to allow reporters to join the select group of people, including doctors and lawyers, who can refuse to divulge evidence on grounds that to do so would impair their ability to practice their profession, an outcome that would do grave harm to the common good. The assumption, in turn, is tied to the promise by journalists that they will provide information that is truthful, fair and accurate. That promise is reflected in the preamble of the journalists' code of ethics.

Not all citizens are legally entitled to claim privilege, of course. Most citizens must testify in court or provide other evidence in their possession when asked so that courts can use all available evidence to render good judgments about crimes and civil controversies. Privilege, to the extent that it can be extended to certain professionals, must be very narrowly applied or the justice system would collapse.

Given this fact, the question of who counts as a professional journalist and can claim a reporter's privilege under law is important. The nature of modern communications makes it a surprisingly difficult one to answer.

What should be the test? Here are some possibilities to consider:

1. Employment with an established news organization (full-time or freelance). A Senate bill that would create a federal shield law takes this approach; it applies only to people who get paid to collect and disseminate news.

The parallel House bill makes no such distinction. It protects anyone, paid or unpaid, who works in an editorial capacity for an entity that disseminates information by any means, including electronic publishing.

2. Commitment to a set of commonly held values. Earlier this year, it was argued in this column that professionals are distinguished by such traits as character, introspection and judgment. We still believe that.

3. Affiliation with a professional community. Individuals who join a professional organization, accept its code of practices, and work in concert with like-minded individuals to maintain standards and accountability, are more deserving of the title "journalist" than independents responsible to no one but themselves. We suspect that, in the future, eligibility for protection of shield laws may have to be measured by some combination of all of the above.

So, back to Josh Wolf. Should the shield law apply to his particular circumstances? Under the proposed House bill, he would likely be protected. Under the proposed Senate bill he would not.

Regarding protection under possibilities two and three cited above, it is difficult to say without knowing more about Wolf.

Meanwhile, we will continue to argue that a distinction must be made between a professional journalist and every blogger, podcaster and anyone else with access to an audience. All are citizens and have a claim to free speech under the law. However, not

everyone can claim a reporter's privilege. If they could then no one would be obligated to give evidence in a wide range of situations. When everyone counts as a journalist, no one really counts – because the granting of privilege would become impractical.

So finding a common understanding of what it means to be a professional journalist for purposes of who deserves shield protection is critical.

We must talk.

© Mark Doremus and Karen Slattery

Mark Doremus has a Ph.D. in Journalism and Mass Communication and a law degree from the University of Wisconsin-Madison, where he is now employed as a research administrator. He worked in television news for 13 years in various capacities, primarily as a news reporter-photographer. He still cares deeply about the press, in all its forms, and its practitioners. He met his wife and co-columnist, Karen Slattery, when they were both working in local television news.

Karen Slattery is an associate professor in the College of Communication at Marquette University. She teaches courses related to broadcast journalism, media ethics, and qualitative research methods.