The Constitutional Right to a Press Pass
I get asked about press passes a lot–I guess because I once had one. And the more I think about it, the more I’m raring for a constitutional challenge to the way many press passes are assigned in this country.
You see, historically, just about the only meaning of Freedom of the Press that would have made sense to our founders was freedom from having the government choose official reporters by licensing or fees or some other means. The whole reason we have Freedom of the Press is because stodgy countries in Europe were ensuring a tame press by either picking official printers, only giving licenses to their favorites, or charging a lot of money for the kind of press they didn’t like. And when those Dirty Fucking Hippie colonists rebelled against the Stamp Tax, they determined never to see something like it or the more onerous licensing on their watch.
Currently, many government agencies are discriminating against citizen-bloggers like me–or even plain old online reporters–because they don’t kill trees to circulate their work. This is changing (one of MI’s bloggers has a legislative press pass, apparently some DFH bloggers have been allowed into Federal courthouses). But not everywhere. For example, given my current circumstances, I cannot get a press pass to Congress. So far, nice Committee staffers have been willing to set aside a seat for me. And they’re good seats, too, right behind the witnesses. But they’re far away from the power sources, and journalists who don’t know me get really crabby when I go to the wall to use them so I can keep my laptop running.
Anyway, a blogger-reporter in NY is going to challenge the constitutionality of all this.
New York journalist Rafael Martinez-Alequin and his lawyer NormSiegel are challenging the New York City police department’s policiesfor issuing press credentials. (For somewhat arcane reasons having todo with access to crime scenes, the NYPD issues all City mediacredentials.)
[snip]
Martinez-Alequin was a credentialed member of New York’s working press for since the early ’90s . He published the New York City Free Press on newsprint until the end of 2005, and shifted the paper online in 2006. He also started blogging at Your Free Press.
In 2006, the department downgraded Martinez-Alequin’s status from"working press" to "press identification pass"–without explanation.The journalist didn’t realize there was any difference. He kept ondoing what he’d always been doing.
In 2007, he jumped through the familiar hoops to get his passrenewed, but his application was denied.
[snip]
Siegel and his client are prepared to challenge theconstitutionality of the City’s whole press credentialing policy. TheNYPD may be discriminating against reporters for web-basedpublications. Or, it may be singling out Martinez-Alequin for someother reason. Either way, the reporter and his lawyer say they’reprepared to go to court if the pass isn’t reinstated.Â
I’ve been waiting for a really good person to challenge this system, because contrary to what many journalists understand, it goes to the heart of what our founders intended press freedom to be all about. You could make a really compelling argument that many current press pass schemes amount to privileging those who work for large corporations–who, after all, have certain conflicts of interest with some kinds of reporting. So if they’re choosing the corporate reporters and not us DFHs, they’re effectively choosing to license primarily staid, cautious reporting–with a strong bent toward corporate coddling.
May the DFHs win freedom of the press!
EW, I suspect it’s the ’journalists’ who *do* know you–or at least know who you are–who get really crabby when you go to the wall to get powered up. They know you’re doing their job, and far better than they could ever hope to do.
azportsider
No, there are plenty–most who covered the trial–who are quite pleasant and often quite generous with me. Several of whom are shocked each time they realize I can’t get a press pass in Congress.
I guess the â€press pass as a favor from the court of the king†theory explains why there is never much credible questioning of Bush at his little press conferences. For the life of me, I have never understood how it is that someone, anyone, attending one of those soirees doesn’t, after hearing some pure unaldulterated crap coming out of Bush’s mouth, stand up and say â€Mr. President, you just lied through your teeth to us, a concept you have turned into an art form; couple that with the fact that everything you touch turns to immediate shit, and I would like you to tell us why any American should trust you to so much as clean their toilet?†I suppose anybody doing that would immediately have their press pass yanked and their media ownership would be getting some of those phone calls that CBS got on Dan Rather.
Off Topic: Never in a million years would you have reminded me of the Peanuts character. Just sayin.
I’m laughing that I found this by googling â€media credentialing bloggers†rather than my regular dropping in here.
This issue came up here when the Anchorage Daily News and KTUU jointly hired an attorney to get press access to the FBI surveillance tapes in the Alaska political corruption trials as soon as the prosecutors showed them in court. They also got the judge to let media bring their laptops and cellphones past the security. As a citizen blogger with no institutional affiliation, I was advised by the media folks (who were very supportive of my efforts) to make my own media badge on my home computer, which I did. This happened during the second trial and the guards had seen me during the first one and let me through with no questions. For the third trial I was questioned and they took my email and url and let me through. Two days later I was told â€There’s no policy yet for bloggers, but the judge said since you’ve been covering the first two trials, you can bring your computer in for this one.â€
But all these rules – access to the FBI evidence and bringing in laptops – were made for these particular trials only and have to be renegotiated for the next ones. So I’ve been looking around at what’s all out there – about court access and then also about bloggers.
It seems the press credentials for bloggers is being dealt with in all sorts of venues. Sports bloggers have a lot on this with different outcomes that seem totally idiosyncratic. Basketball, football, golf… The Latin Grammys turned a highly qualified blogger down. The American Bar Association allows bloggers into their national conference. And the CIA has redefined their definition of the media to apparently include bloggers. And then there is the Media Bloggers Association that is credentialing bloggers. They got two bloggers into the Libby hearing – apparently you weren’t one of their bloggers.
Up here in Alaska, I’m not sure there’s that great a benefit to the credentials generally, but having my laptop in court sure was a big deal.
Credentialing criteria that I’ve seen so far includes things like:
a. how long and frequently you blog
b. do you cover ’news’ in the particular area rather than just post family pictures
c. % of your income that comes from media work (California legislature)
d. affiliation with established media
e. do we like what you write about us? was not listed anywhere
Issues raised to restrict press (including video/still cameras, audio ) access to courts:
a. space in the courtroom
b. privacy and security of jurors, witnesses (particularly undercover agents and rape victims), defendants (children)
c. disturbance of the court proceedings
Judges seem to be given considerable discretion.
As you write, the ability of the government to choose who covers them does not encourage critical coverage. California (I think, but can’t find the reference now) seems to have dealt with the problem of limited room by setting up press rooms with live video feeds, for press who can’t get into the courtroom itself. How often they actually do that I have no idea.
The US District Court in Anchorage does seem open to suggestions for a policy – in general, including recognizing bloggers – so if anyone has some good model policies, please let me know.
Thanks.
Steve:
I’ve had some very thoughtful discussions with Sheldon Snook–who credentialed bloggers for the Libby trial (and no–I was not one of the MBA bloggers, FDL/HuffPo/DKos had three passes, two in the court room) and with one of the people in Public Affairs at Prettyman, DC District.
One thing I’d add to your list (after taking off the % of income from blogging, since that is one thing that I believe to be unconstitutional) is recognition for your coverage. I suggested that rather than judging on readership (since really focused blogs tend to spike when their expertise becomes relevant), a Court ought to judge on links. Since linking is a sign of reliability, you’d want to show links to show that you’re considered reliable (and, preferably, knowledgable on the subject) by your peers.
That said, while all these venues have seating limitations, the Courts have the requirement to ensure a fair trial, which is another reason to be concerned about the media coverage.
EW, did you note Judge Walton’s comments during the panel regarding the press and the justice system on C-Span 2 or 3 weeks ago where he commented that he did read some of the blogs credentialed for the Libby trial and found the reporting quite good and insightful? In this light it seems certain that he must have stopped by the Next Hurrah.
Mz. EW, you constantly amaze and delight this old dog of an NPR former local flacker.
Great read, and here’s to Rafael Martinez-Alequin and his efforts to make bloggers part of the MSM in the ways the dfh’s and the colonial’s in their time envisioned a free press SHOULD operate!!!
HUZZAH!!!!
I wasn’t endorsing the % of income, merely reporting it as a criterion that was used. It would wipe me out completely.
â€Anyway, he can now have credentials because he earns more than half of his income from media jobs. In his case, that’s researching and writing for his website. The new policy requires applicants to name the sources of their earned income, explained Laura Mahoney, secretary-treasurer of the CCAC [Capitol Correspondents Association of California.] Under the old rules, you had to work full time as a reporter covering the Capitol to qualify.
California is ahead of the curve on this issue. It was one of only a few states where people were giving blogger credentialing some serious thought late last year when I was working on a State Legislatures article about bloggers. The income test was not something any of the experts suggested when asked where to draw the line. Mahoney, of the CCAC, said her organization got that idea from the rules Congress follows. And the Media Bloggers Association and the Poynter Institute also gave guidance about transparency.â€
This is from the National Conference of State Governments blog.
Your added criterion would help me, because the Anchorage Daily News was very supportive and regularly linked to my blog during the trials. I need to document those links. Thanks.
And I agree that the main goal for the judge is a fair trial, and that includes public access to what is happening in the court room.
I think the federal reporter shield subsection about fraction of income from blogging was a gift to the information sequestration interests in the bureaucracy, very much aligned with the current administration’s management techniques; some reporters being more equal than others. I hope the NY case involves a jury would consider a hamiltonian strategem of nullification, the way Zenger won a pardon because of the flaws in the then extant sedition regulations.
NORM SIEGEL is the ’really good man†you have been waiting for to challenge this.
I’m with bmaz… There seems to be some cozy little system in place so that only those who will not tell the king that he wears no clothes are allowed to attend. If we truly want solid news reporting, maybe some sort of lottery system should be implemented for six month periods or some other fixed term. Interested parties get their name in a hat to report on the White House or Congress or whatever.
EW, something that troubles me a great deal is that journalism struggled for so long to be recognized and respected as a profession. These years under Bush have set the profession back a few decades. Anyone can be a mouthpiece, and that appears to be what we have — mouthpieces who will report what they are told, and not question anything.
Personally, I love what you do here and it will stand up to the best of anything else that I read in the print media.
Keep on keepin’ on!
Thanks, EW!
Who cares who the lawyer is? The Constitution and the case law are crystal clear on this one. The NYPD shouldn’t be ruling in secret about who’s press and who isn’t. That goes double if the NYPD is clinging to a policy of discriminating against reporters who communicate through blogs or other web-based publications.
As Siegel pointed out at the press conference, authorities tried to do the same thing to TV reporters back in the day, because they had this bias that TV was ipso facto not real news. At the time, the courts refused to back that bias.
If push comes to shove, I predict they’ll treat a person who has a track record as an officially recognized journalist in exactly the same way. In practice, fights over credentials for blog/online reporters have been about whether that person meets the pre-established criteria newsgatherer status. (Do they publish often enough? Do they actually cover news?…) In this case, there’s no doubt that the reporter met every standard before he moved his coverage online. That’s a golden test case.
Steve
Oh, I wasn’t suggesting you were endorsing it. I was just saying–that’s one of teh requirements that keeps people like me out of COngress.
J Thomason
I gave a paper at that conference, though Reggie didnt’ arrive in time to see it. I did get a chance to chat with him shortly before he spoke, though. When we spoke, he said something like reliable several times.
Oh wait. Reggie’s word was â€thorough.†He used it several times.
Lindsey
I’m not worried about the lawyer at all. I just withheld from pushing this myself, for example, because I wasn’t as clear cut a case as Martinez-Alequin. I want to win this battle definitively.
Definition of â€new mediaâ€:
When having access to the ’power sources in Congress’ means being able to charge your laptop.
Access to power outlets is a big deal!
And while it is true that there are lots of irresponsible bloggers, the same is true for the print media and television and radio.
~pockets
Well, there’s an irony there. Yeah, I’m simple and need electricity. But the only reason I’ve been given a seat (and a nice one, too, right behind the witnesses) is because I’m somewhat connected politically.
Journalists bitch that we’re too partisan. But partisan is the only way to get a seat, at this point.
I was just laughing because when I read the sentence about you being kept â€far away from the power sources†I thought you were going to be referring to the committee chairs!
emptypockets – That was my initial take also until the end of the sentence plug reference.
EW shows how to use political connections to do good. Our thanks to your political admirers.
With respect to power sources, I hear that solar powered charges for cellphones are sort of standard fare in African countries. Wondering whether we have any similar devices yet here in America.
If Christy gets her way and US Courts and Congress receive more sunshine, EW won’t need to be roaming Congressional hearingrooms and courthouses searching out electrical outlets.
But it would be great to have her with electricity there anyway, just in case a cloud over the WH drifts by.
I was just paraphrasing Walton and conveying an impression. I don’t remember his precise language. I took it as favorable.
â€I’ve been waiting for a really good person to challenge this systemâ€
Marcy
Paul Kiel
Spencer Ackerman
Jane Hamsher
Christy Hardin Smith
Don’t yall know any lawyers?
ew – I just checked out a book from my local library called ’We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age’ by Scott Gant, former counsel to The New Republic. It deals with the very issues you bring up in this post in an extended format and is a pretty good read to boot. At a breezy little 200 pages + footnotes + index it’s worth a look.
On any income test criteria, the individual shouldn’t be the one tested, but rather the organization that sent the individual.
i.e. the NY Times may send an intern who is living off her mom and dad.
FDL may send Hamsher.
(income of the individual would have little meaning while income of the organization might.)
As for â€links†well you can be linked a lot of places by offering a broad venue of services like celebrities, porno, free music, etc. Likewise there can be a lot of self serving links where every blog links to every other blog and has 200 hundred thousand links. So what?!
It would be interesting to see a better model offered than the current (traditional) one which is primarily based on established historical presence and paid circulation.
Jodi Shit Stain
Dear I have an awfully hard time understanding what you’re saying with your head jammed so far up your ass.
You see, historically, just about the only meaning of Freedom of the Press that would have made sense to our founders was freedom from having the government choose official reporters by licensing or fees or some other means.
Marci…
I’m afraid that your understanding of â€freedom of the press†is flawed. â€The Press†as used in the constitution is not a reference to journalism or reporting; that usage wasn’t even extent until around 1800. ( http://www.etymonline.com/index.php?term=press ) In other words, the founders could not have been concerned with the problems associated with â€the government choosing official reporters†because that is not what â€the Press†meant when the Bill of Rights was written.
Instead, â€the Press†is simply an extension of an individuals freedom of speech — the Constitution prohibits laws restricting the free flow of information or ideas in the only two ways that information/ideas could be distributed — orally, or printed.
p luk
My error was in usage, not in the understanding of the law.
The issue was the govt choosing official printers–but at the time, that amounted partially to choosing official reporters and certainly official editors.
There is some debate whether the Press clause is a part of speech or not. But not if you do the historical work (there are several SCOTUS opinions that do do this–and they agree with my depiction here). What the founders were afraid of was the licensing that had existed in England and other European countries which amounted to choosing an official source of news (again, with the acknowledgement that printer and newspaper were usually one and the same).
I agree the term reporter and the meaning of press that today’s established press didn’t exist in the 18th century. But the meaning of the term â€Press†meant access to means of production and what the First Amendment forbade was the selection of one means of production over another–precisely the issue here (though there is the added issue of medium).
One of those inspiring Rove slideshows politicizing all agencies must have kindled the zeal of vote suppression in von Spakovsky while he was a leader in the Bush Voting Rights section at Dept of Justice; von Spakovsky secretly submitted a law journal article encouraging DoJ to approve of the GA voter ID regulation’s 1st iteration. VonSpakovsky coopted the journal’s editors into hiding his identity, pirating a famous name from the past as author, Publius.
I have to disagree again.
Free Press is somewhat like Free Speech, yes.
But it doesn’t mean that all Press and all Speech must be heard. Only that they not be oppressed!
You can print all you want, and say all you want, but that doesn’t mean that anyone has to either listen to you, or speak to you, or that you have a key to the door of the conference room. A good example is the Judges when they make decision
about how they open their court rooms.
â€You can print all you want, and say all you want, but that doesn’t mean that anyone has to either listen to you, or speak to you†— Jodi
Truer words were never spoken, or in this case typed.
If the government thinks the press needs to be more free about printing certain viewpoints, it can pay reporters to write in the most flattering way possible to shore up its policies. I think this occurs more than we realize, but the writing style is pretty transparent when the writer is slanting the news as a favor to the benefactor who is signing the payola paycheck to assure the news is reported in a way that praises the government. When I first saw that article divulging one such instance of payola last year it seemed pretty starkly unfair for the government to be coopting the free press that way. Evidently the people the New York Times named in that report quit posthaste but there was a reconciliation of some sort and most of the reporters who were actually moonlighting for the propaganda writing machine were rehired. Several similar stories appeared in print over the first years of Bush-2’s second term, to the extent it began to seem commonplace as a fixed policy of the administration to sponsor writers who would develop the administration’s stories in the media. Something about the process of government buying column-inches surreptitiously as occurred in the linked instance evokes a yearning for a way to apply the analog of the Establishment clause, but to the freedom of the press instead of for preservation of a clean separation between sectarian and tax-underwritten secular exercise of government.