by Scott Gant. New York: Simon and Schuster, 2007. 256pp. Hardcover. $26.00. ISBN: 9780743299268.
Reviewed by Thomas Shevory, Department of Politics, Ithaca College. Email: shevory [at] ithaca.edu.
Scott Gant’s recent book about the nature of journalism in a “new media” environment is compact, accessible, and chocked full of provocative arguments that confront the conventional wisdom that freedom of the press requires special prerogatives for practicing professional journalists. Seldom does such a short book have the kind of impact on your thinking about a topic as this one had one mine. Given the dearth of incisive analysis on the First Amendment implications of new media, the book is a welcome contribution.
Gant’s thesis is simple, straightforward and stated in the title. He is suggesting that the boundaries between professional journalism and the communications of ordinary citizens are collapsing, if they have not already collapsed. Moreover, legal rulings have provided a mixed and confusing picture of current professional protections of journalism. Gant steps into this fluid context with an intervention that is both conceptual and practical. He wants his readers to understand the nature of changes that are occurring, and he wants practical changes in law and policy that reflect these broader underlying structural transformations.
Gant begins with consideration of some of the privileges that are now offered to American journalists, distinguishing them from ordinary citizens who participate in new media practices, such as online newsletters, digital journals, and blogs: The Department of Justice sets a higher bar for subpoenaing journalists. Journalists are often given access to war zones that are not allowed to others, as has been the case in both Iraq wars. Journalists are permitted to take notes during Supreme Court oral arguments, while other audience members are not. Scott rejects these protections, stating, “Although many thoughtful observers embrace the view that professional journalists should be routinely afforded rights and privileges unavailable to others, I believe it is misguided. The circumstances in which it is necessary and justifiable to extend preferential treatment only to them are few . . . The First Amendment is for all of us – and not just as passive recipients of what the institutional press has to offer” (p.5).
Courts, in fact, seem increasingly unwilling to offer legal protections for the traditional press, a trend that Gant attributes partly to its declining credibility in the public’s eyes. Wen Ho Lee, for example, reached a large monetary settlement with both the federal government and news organizations after he was publicly, and apparently unfairly, accused of being a Chinese spy. The subpoena of a reporter [*129] for the WILKES-BARRE TIMES LEADER to obtain information about a murder suspect that he had interviewed was upheld in Pennsylvania court. NEW YORK TIMES reporter Judith Miller was famously confined to jail for not revealing a source connected to the Valerie Plame-Wilson case.
The professionalization of news, as Gant notes, is a development that occurred during the course of the twentieth century. In preceding eras, news gathering, writing, and distribution was more open, fluid, and unruly. The development of professional standards occurred with the growth of large news gathering organizations, first print media, and then radio and television. Over time, the growth and consolidation of these organizations has led to a decline in the quality and diversity of news products and a concomitant loss of faith and prestige on the part of various publics with regard to news media. As Gant notes, “we are caught in a cycle in which the ambitions of news organizations and the appetites of news consumers are collectively diminishing the breadth and quality of reporting at most news organizations.” Consumers’ are waging what James Fallows has referred to as a “‘quiet consumers’ boycott” (p.23).
New media practitioners are to some extent filling the void left by declining diversity and increasing superficiality among traditional media sources. Their attempts to gain some legal protections as journalists has produced mixed results. When Apple filed a lawsuit against a website that had leaked information about its new products, the California Court of Appeals decided in favor of the website, including its publishers on the state’s journalistic shield law. On the other hand, Gant cites a Texas case which upheld a blogger’s exclusion from covering a state transportation conference because he was not deemed a member of the “mainstream media,” and a Kentucky case where a blogger was denied access to cover the state’s General Assembly (p.42).
Gant includes a very good chapter on the meaning of the “Press Clause” in the First Amendment. As he notes, the framers of the Constitution, were suspicious of licensing practices, which they associated with English law, and which were rightly viewed as a mechanism to limit press freedom. Legal and institutional standards that protect journalists as professionals look suspiciously like licensing requirements, and thus seem antithetical to the ethos of press freedom foreseen by the framers. Moreover, the framers had a very expansive view of what constituted “the press,” including, books and pamphlets. This makes sense given the importance of political pamphlets, such as Thomas Paine’s, to the success of the American Revolution.
The Supreme Court, it turns out, has not been willing to carve out special legal protections for members of the press. According to Gant, “the Court has based its rulings on free speech rights that belong to the press equally with others” (p.58). Journalists are not only not exempt from laws that protect ordinary citizens, but the Court has determined “also on many occasions where news organizations have asserted special rights of access to places and information that members of the press have no more rights to such access than [*130] other citizens” (p.58). The one Supreme Court case that moved toward special exemptions was BRANZBURG v. HAYES (1972), in which several members of a Kentucky newspaper, THE COURIER JOURNAL, requested immunization from grand jury subpoenas. Lewis Powell, in his deciding vote with the 5-4 majority, suggested that “‘newsmen’” are not entirely “‘without constitutional rights with respect to gathering of news or in safeguarding their sources’” (p.62).Yet the court, including Powell, actually rejected the journalists’ claims, and given the fractured nature of the written opinions, the case has held little precedential authority. Since BRANZBURG, the Supreme Court has declined other opportunities to move in the direction suggested by Powell.
Where much of the press’ protection comes from, then, is not legal opinions, but the credentialing process. The press is given special access, Gant argues, for several reasons: because of the mistaken belief that the Constitution supports them, because of more general sense that access is “beneficial to society,” because of explicit legal rules or other regulations that extend such privileges, or simply due to ad hoc decisions on the part of those in positions of authority. When new media practitioners have sought access to the same sets of entitlements, they have often met resistance from their “professional” peers. The online paper, WORLDNETDAILY¸ was refused press access to the House and Senate galleries for more than a year, until the Standing Committee for Correspondents changed its position and allowed admission. Institutional rules differ between government branches, and across state and local jurisdictions, but the practice of credentialing conventional media organizations is widespread.
In the end, Gant contends that it is not so much that members of the conventional press should be denied special legal protections under the First Amendment, but rather that, in a world where “we are all journalists” an expansion of the First Amendment to include more of us is in order. In fact, whether conventional journalists like it or not, the world of new media is expanding at a phenomenal rate, and its impact has been and will continue to be felt in multiple ways. Legal rules and credentialing practices must be reconceived to grapple with these emerging media practices. There are obviously physical limits to how many people can attend a White House press conference, but rules governing who those participants are need to be reconsidered. Gant concludes by stating that, “It is time to do away with the journalistic caste system we have created, which elevates the employees of established news organizations above citizens engaged in the practice of journalism. It is time to recognize the conception of press liberty as a right and a privilege that belongs to all of us, not just mainstream news organizations” (p.204).
While I found myself agreeing with many of Gant’s contentions, there are, of course, potential problems created by lowering the bar between a professional press corps and other news sources, digital and otherwise. Most obviously, line-drawing may be difficult, especially in terms of access. While there are many interesting, insightful, thoughtful, and provocative digital media sources worth giving access to spaces from [*131] which they are now excluded, there are also online bloggers and news writers who tread the boundaries, not just of legitimacy, but of rationality. There is also a danger that the protections now given to professional journalists could be retracted without a concomitant expansion of First Amendment protections to the rest of us. The imprisonment of journalists, and expanding the reach of libel law, does probably not bode well for First Amendment protections overall. To Gant’s credit, he addresses some of these counterarguments. Whether he has provided compelling responses can be left to the reader to judge.
I would recommend this book for social science courses at all levels dealing with First Amendment issues. It is as suitable for undergraduates as it is for graduate or law students. One of the great virtues of the book is its clear presentation of sophisticated and important legal and political arguments.
BRANZBURG v. HAYES, 408 U.S. 665 (1972).
© Copyright 2008 by the author, Thomas Shevory.