Gerard Van der Leun: Journalists aren't same as doctors, lawyers, getoverit [fs]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Re: [Politech] Some replies to bloggers hurting reporters' 1A 
defense [fs]
Date: Wed, 12 Jan 2005 14:09:37 -0800
From: Gerard Van der Leun <gvdl () cox net>
To: Declan McCullagh <declan () well com>

Dear Declan,
I find it risible that Mr. Knowles seeks to conflate the singular
patient and the singular client of the doctor and lawyer respectively
with the hallowed  "source" of the "reporter." I recognize that the
promise and the fulfillment of anonymity may be necessary if the
reporter is to extract "facts" or garner quotes and opinion that the
source would not willingly put forward under his or her own name, but
that does not equate to issues of privacy and confidentiality when it
comes to medical status or legal issues.

This constant yearning of the journalist to expand the special
exemption of the 1st Amendment to a codified status is, at the end of
the day, not going to wash. It might have been doable at one time, but
in light of the continuing erosion of credibility on the part of the
press, special rules are probably not to be looked for any time soon.
People clearly understand the difference between consulting your
doctor, consulting your lawyer, or talking with your priest, and
blathering on to a journalist. The law is also, it would seem, more and
more likely to understand them as well.

For a long time, journalists relied on the assumption that "they won't
dare put me in jail for doing my job" as a kind of default protection.
Those days are waning and not likely to return. It might be wise to
memorize the number of a bail-bondsman.

As to Mr. Knowles' second assertion that 'putting two words together
and making use of a publication system' does not make someone a
journalist, what, exactly, does he think journalists have been doing
for centuries? If you want to be a doctor, a lawyer, a hairdresser or a
notary public, you have to obtain credentials. If you want to be a
journalist, just print up some business cards at Kinkos. Its an easy
job to do and a hard one to thrive at, but that doesn't mean you've got
to flash some sort of special badge. Indeed, the best thing about it
today is that there are no barriers to entry, just a very steep slope
to a living wage.

As to "subject to standards," it is to laugh.

As to "privileges," just make sure you have back-up for those expense
account lunches with your "anonymous" source.

On Tuesday, January 11, 2005, at 09:32  PM, Declan McCullagh wrote:

> If the blogger claim were valid, then all doctors would be at
> risk from having their special status stripped as a result of all the
> people in the world who are armed with band-aids, and all lawyers
> would be at risk as a result of all the people in the world who are
> armed with an opinion.
>
>         Just because someone is capable of putting two words together and
> then making use of a publication system does not necessarily make
> them a reporter, and therefore subject to the same standards and
> privileges.
Gerard Van der Leun

http://americandigest.org






-------- Original Message --------
Subject:        Re: [Politech] Some replies to bloggers hurting reporters' 1A
defense [fs]
Date:   Wed, 12 Jan 2005 14:27:50 EST
From:   MarkKernes () aol com
To:     declan () well com


In a message dated 1/11/05 10:48:16 PM, Brad Knowles writes:

> There's a fundamental difference between a blogger and a reporter
> -- the former is without editorial controls placed on what they
> choose to write, nor are they subject to ethical or moral standards,
> beyond ridicule.
>
>     The latter is held responsible to an editor, and presumably
> certain ethical and/or moral standards above and beyond the minimal
> legal standards that are required.
>
>     If the blogger claim were valid, then all doctors would be at
> risk from having their special status stripped as a result of all the
> people in the world who are armed with band-aids, and all lawyers
> would be at risk as a result of all the people in the world who are
> armed with an opinion.
>
>     Just because someone is capable of putting two words together and
> then making use of a publication system does not necessarily make
> them a reporter, and therefore subject to the same standards and
> privileges.


Fascinating stuff -- at least as fascinating as the folks who have
somehow managed to find the word "responsible" somewhere in the First
Amendment, as in, "Congress shall make no law... abridging the freedom
of *responsible* speech, or of the *responsible* press."

Didn't the New York Times apologize sometime last summer for swallowing,
hook, line and sinker -- and printing -- the administration's claims
about pre-war Iraq? I'm sure the reporters who wrote those stories were
responsible to some editor at the Times, but I don't seem to recall
anyone being fired for helping mislead America into war -- and I don't
see Knowles questioning *those* reporters' "ethical and moral
standards," nor calling for those reporters to lose First Amendment
protections for *their* confidential sources.

Has Knowles ever even SEEN Fox "News" Channel?

As for the journalist/doctor/lawyer comparison, aren't doctors and
lawyers licensed by their respective boards? Last I heard, journalists
weren't -- and I'll be damned unhappy if anyone tries to require that.

Fact is, with the myriad gaffes continually being committed by even
major news organizations -- hell, Fox commits them hourly -- the
ultimate check on a reporter's (or blogger's) accuracy remains the
anti-defamation laws. And I haven't seen any call for bloggers to be
exempted from those.

Mark Kernes, AVN

Walking on water wasn't built in a day." -- Jack Kerouac




-------- Original Message --------
Subject: Re: [Politech] Some replies to bloggers hurting reporters' 1A 
defense [fs]
Date: Wed, 12 Jan 2005 17:37:33 -0600
From: Jim Davidson <davidson () net1 net>
To: Declan McCullagh <declan () well com>

Dear Declan,

Thanks for posting my note and other excellent comments.

As a Columbia alumnus, it is great to learn that Floyd Abrams
teaches the journalism school students about his experiences with
the Pentagon papers and the First Amendment.  Truly, that was an
important event.  I'm also glad to see that Ethan Lindsey is
suspicious of the idea of a government credentialing rule.  For
who shall guard us from the guardians of credentials themselves?
Sed quis custodiet ipsos Custodes?

It is certainly important to an understanding of my views on this
matter that I don't actually care what the Supreme Court says
about individual liberty or the freedoms enumerated in the
constitution, although I have read almost everything they've ever
written on the subject.  My reading of the First Amendment does not
show any authority for Congress to make any law abridging freedom
of the press, with a credentialing rule, nor with a rule limiting
the freedom of the press to reporters who have editors riding herd
on them, nor with any other rule.  Abridging the freedom of the
press of web loggers would abridge freedom of the press, and anyone
who cannot see that fact should be presumed illiterate and thus
unfit to serve on the Supreme Court.

Mr. Brad Knowles seems to have a difficulty.  For Mr. Knowles the
privilege of not testifying on confidential sources is a delegated
power of an editor.  When a reporter has an editor, in his theory,
then that reporter is subject to editorial controls, and therefore
some ethical or moral standards.  So, when the government wants a
reporter to reveal his source, first they must attack his editor
until the reporter is fired, then the reporter's privilege evaporates.

Woe betide a reporter, such as Matt Drudge, who sets himself up
in business and serves as his own editor and publisher, even for
a few weeks.  Such a person would not have the privilege that Mr.
Knowles suggests belongs only to those with an editor to whom to
report.

The problem with this theory of delegated privilege is that it flies
in the face of the Fifth, Ninth, and Fourteenth Amendments.  In the
Fifth, the freedom not to testify is stated explicitly as referring
to "any person."  It is not a freedom which refers to "reporters
having editorial controls and subject to ethical or moral standards."

In the Ninth, all non-enumerated rights, such as the right to
remain silent on any matter, are "retained," once again, "by the
people," rather than to some specific privileged class.

We also find in the Fourteenth, "No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws."  It would seem that web loggers are embraced by this
protection, as well as those of the Fifth and Ninth.

Mind you, I don't think one should make too very much of a big deal
of editorial controls placed on reporters, or compare such controls
to anything resembling, say, an ethical or moral standard.  To
use the phrase "beyond ridicule," as Mr. Knowles does, is not to
place editorial controls beyond ridicule.  Rather, and I mean Dan
Rather, and various reporters and editors for the New York Times,
would seem to be implicated in rather shoddy "editorial controls"
for various news stories that have, in recent years, proven to be
utterly false.  One does wonder what ethical or moral standards are
at play at, say, CBS, or, say, the New York Times.

All doctors should be at risk from having their special status
stripped.  Doctors are not free enterprisers, but are licensed by
the state in order to limit the supply of doctors, benefiting
their practice by reducing the number of competitors.  Lawyers
are also licensed by the state as a perverse barrier to entry
against individuals.  There is no ethical basis for these systems
of oligopoly.  It is brute force used by the state to benefit a
privileged class.

Just to return to the constitution, a document more noteworthy for
the extent to which it is abused than the extent to which it is
upheld, the Sixth Amendment provides that the accused "shall have
the assistance of counsel for his defence."  It does not say that
the counsel may be licensed or limited in any way.  If the accused
chooses to have a minister or preacher give him counsel, the
lawyers would squawk, but that would just be the normal noises of
a privileged class encountering the free market and the non-enumerated
freedoms of that Ninth Amendment.

Someone who is capable of putting two or more words together and
reports information is a reporter.  There are no standards in
operation within CBS nor the New York Times which should be held
up as ethical or moral, therefore the web loggers should be held
to the same absence of ethical or moral standards, and, indeed,
should be free enterprisers and compete in an open and competitive
market.  As for reporters being subject to privileges, it is not
a matter of privilege.  There are no licenses for reporters, owing
to the freedoms guaranteed by the constitution.  Newspaper sales
are not subject to tax, because of the same freedoms.

So, the comparison to doctors and lawyers is puerile.  Reporters
are not licensed, and having reporters be licensed would be a bad
thing.

Anyone wanting to see where the blithe acceptance of various
restrictions on First Amendment liberty would lead should look
directly at the Second Amendment.  There are now some 20,000
unconstitutional gun laws which infringe the liberty to keep
and bear arms, although the words safeguarding this freedom
are even broader ("shall not be infringed") than those serving
to protect the First Amendment ("Congress shall make no law").

The irony of Mr. Knowles quoting Ben Franklin, an unlicensed
newspaper publisher, on the topic of giving up essential liberty,
in his .sig is quite delicious.

Regards,

Jim
 http://indomitus.net/






-------- Original Message --------
Subject: Re: [Politech] Some replies to bloggers hurting reporters' 1A 
defense 	[fs]
Date: Wed, 12 Jan 2005 11:15:48 +0100
From: Brad Knowles <brad () stop mail-abuse org>
To: Declan McCullagh <declan () well com>
References: <41E4B664.3020707 () well com>

At 12:32 AM -0500 2005-01-12, Declan McCullagh quoted Lindsey, Ethan:

>  Once that happens, the body would then be in a position to stifle speech
>  arbitrarily by deciding who has those protections. And the illegality of
>  credentialing has been repeatedly upheld in the courts for decades. So,
>  in some ways, when I read the reports of Abrams' efforts in these cases
>  I am surprised. Then again, I am no legal scholar so maybe his argument
>  for Miller's protection is on an entirely different basis.

        Lawyers have a recognized client-attorney privilege.  Doctors
have a recognized patient-doctor privilege.  Journalists have a
recognized privilege regarding the confidentiality of sources.


        If you, as a private citizen and without a law degree, give
someone a legal opinion on a subject, do you have the same
client-attorney privilege?

        If you, as a private citizen and without a medical degree,
perform a procedure on someone or give them medical advice, do you
have the same patient-doctor privilege?

        If you, as a private citizen, publish some writings based on
things told to you by an inside source, do you have the same
privilege with regards to confidentiality of sources?


        There is already a credential process in place for lawyers and
doctors.  Does anyone have a problem with that?  Should we do away
with the bar exams, the AMA, and the ABA?  Should we do away with all
degree programs in these areas?

        For journalists, the credential process is simpler, and less
painful -- get someone to employ you as a journalist, and to apply
for press passes in your name.  Some bloggers were able to get press
passes assigned to them and get into the recent electoral
conventions, based on the journalistic claims made on their behalf by
their sponsors.  Just because they were bloggers doesn't mean that
they weren't journalists.  However, just because you're a blogger
doesn't automatically make you a journalist, either.


        Journalism is a profession.  Blogging is an avocation.  You can
be both, and there is probably a lot of overlap, but they are not one
and the same.

        If you want to truthfully call yourself a journalist, get someone
to employ you in that field.

--
Brad Knowles, <brad () stop mail-abuse org>

"Those who would give up essential Liberty, to purchase a little
temporary Safety, deserve neither Liberty nor Safety."

    -- Benjamin Franklin (1706-1790), reply of the Pennsylvania
    Assembly to the Governor, November 11, 1755

  SAGE member since 1995.  See <http://www.sage.org/> for more info.






-------- Original Message --------
Subject: Re: [Politech] Some replies to bloggers hurting reporters' 1A 
defense [fs]
Date: Wed, 12 Jan 2005 09:37:24 -0500 (EST)
From: Matthew G. Saroff <msaroff () fellspt charm net>
Reply-To: Matthew G. Saroff <msaroff () pobox com>
Organization: The Dealy Plaza Gun Club
To: Declan McCullagh <declan () well com>
References: <41E4B664.3020707 () well com>

On Wed, 12 Jan 2005, Declan McCullagh wrote:

>
> -------- Original Message --------
> Subject: Re: [Politech] Bloggers undercut reporters' 1A privilege
> defense [fs]
> Date: Fri, 7 Jan 2005 10:08:34 +0100
> From: Brad Knowles <brad () stop mail-abuse org>
> To: Declan McCullagh <declan () well com>
> References: <41DE1919.7070801 () well com>
>
>    There's a fundamental difference between a blogger and a reporter
> -- the former is without editorial controls placed on what they choose
> to write, nor are they subject to ethical or moral standards, beyond
> ridicule.
>
>    The latter is held responsible to an editor, and presumably
> certain ethical and/or moral standards above and beyond the minimal
> legal standards that are required.

        Mr. Knowles ignores the realities of journalism here, specifically
the existence of stringers (free lancers).

        I would remind him of the Vanessa Leggett case, where a free lance
journalist was widely supported by the journalistic community following
her incarceration.

>
>    If the blogger claim were valid, then all doctors would be at risk
> from having their special status stripped as a result of all the people
> in the world who are armed with band-aids, and all lawyers would be at
> risk as a result of all the people in the world who are armed with an
> opinion.

        This is a strawman reducto ad absurdum.

>    Just because someone is capable of putting two words together and
> then making use of a publication system does not necessarily make them a
> reporter, and therefore subject to the same standards and privileges.

        Reporting is at its core an attempt to determine and report on the
truth.

        Bloggers sometimes do this, and considering Judith Millers record
on finding the truth, applying an "adult supervision" standard would
likely result in her reporter secret decoder ring being pulled.

        This is why accreditation is unconstitutional.  Any accreditation
authority would necessarily chill speech.

        Reporting on upcoming product releases is an accepted journalistic
activity, just read Motor Trend or PC Magazine.

        What's more, they got the story right, which indicates that the
standards that they are using work.

-- Matthew Saroff At some point in the future, the total number of
lawsuits being prosecuted by the Church of Scientology will exceed the
population of the world Extrapolating on current trends, this will occur
on April 1, 2005.


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