Who’s a Journalist? Who Says?

Joel BellmanBy Joel Bellman      June 11, 2021

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Who’s a Journalist? Who Says?
The famous trial of printer and journalist John Peter Zenger (1697–1746) was one of the most important events in shaping American thinking toward freedom of speech prior to and after the adoption of the First Amendment.
Author’s Note: As this issue was going to press, Sen. Mike McGuire and Sen. Anthony Portantino, the bill’s sponsor and co-sponsor respectively, announced their intention to amend the measure in the Assembly to remove the objectionable portion. Los Angeles journalists are up in arms over SB 98, a state Senate bill that began as an effort to ensure reporters’ ability to cover demonstrations and civil unrest but was subsequently hijacked to give police even more power to limit access and control news coverage. That’s how a bill that journalists needed as protection from overzealous cops—this slideshow of police violence against reporters over the past year alone is hard to watch—has been weaponized by the cop lobby for its own purposes. State Sen. Mike McGuire (D-Healdsburg), the bill’s principal sponsor, and press groups are pondering whether to keep supporting SB 98 in hopes it can still be salvaged, or scrap it and start over. The public may be forgiven for asking, “Who cares? Why do reporters deserve any special privileges?” But the answer is clear: Because, dear reader, those reporters are you. They are your eyes and ears, your representatives, your witnesses, your chroniclers of news events that you can’t witness and chronicle for yourself. More than informing you, they empower you to hold institutions and individuals accountable. And may I respectfully remind you that “the press” is the only profession specifically singled out in the Constitution for special protection: under the First Amendment in the Bill of Rights, “Congress shall make no law…abridging the freedom of speech, or of the press…” Full disclosure: as a board member and Advocacy Committee Chair of the LA chapter of the Society of Professional Journalists (SPJ), I’ve been directly involved in the SB 98 effort. So I am very much not a neutral observer. Back in the mid-‘80s, the SPJ (then known as Sigma Delta Chi) and the Ad Council mounted a public-service campaign with a memorable catch-phrase: “If the press didn’t tell us, who would?” It still resonates, particularly after a nightmare presidential administration that made Spiro Agnew look like John Peter Zenger*. It’s no accident when cops draw a bead on reporters trying to cover protests and shoot them. Even non-lethal ammunition can blind, disfigure, and disable. It’s no accident when they yell, “I’m going to break your f***ing camera!” It’s no accident when a reporter on a public sidewalk, wearing her radio station lanyard and loudly and clearly identifying herself, is nevertheless knocked to the ground, injured, and arrested by Los Angeles sheriff’s deputies, who deliberately try to damage and disable her cellphone. Or when a journalist of color is called in to the City Attorney’s office and warned that depending on his (unspecified) future behavior while covering demonstrations, he could be prosecuted. That’s pure intimidation, intended to chill his First Amendment rights. It’s to make sure the press can’t tell us. Thus the need for SB 98, which initially sought to extend the same access to “duly authorized” reporters covering civil unrest as reporters covering disaster scenes currently have under California law. It’s a second attempt to protect reporters after Gov. Gavin Newsom vetoed SB 629, an earlier bill, last year, citing the potential for abuse by non-journalists flying under false press colors (though there is no evidence this has ever been more than a rare, isolated issue.) This time, the sponsor simply dropped the language believed to have offended the governor, an overly expansive definition of “duly authorized” journalists. But with no statutory definition of “duly authorized,” and no consensus among journalism organizations of how to define it, SB 98 created a loophole big enough for the LA Sheriff’s Department to drive an amendment through: in the current bill, “duly authorized” is entirely up to the law enforcement field supervisor on the scene. Call it the Humpty Dumpty policy, straight out of Alice in Wonderland: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’” But if this draft bill now says that “duly authorized” means whatever law enforcement decides, a 1984 Attorney General’s opinion took a diametrically opposed view, asserting, “We reject the argument that the ‘duly authorized’ news media exception refers to someone authorized to be in the area by the law enforcement officer. Rather, it is apparent that the phrase ‘duly authorized’ refers to the news station, newspaper, or radio or television station or network having ‘duly authorized’ the individual to be its representative at the site.” The only thing worse than unsatisfactory ambiguity is unacceptable specificity, which is why there is now virtually unanimous journalist opposition to the mangled bill unless it’s somehow repaired in the Assembly. At bottom, though, the question turns less on who is duly authorized than on who is empowered to do the duly authorizing. Thus we confront the thornier issue of press credentials in general, where law enforcement already has too much discretion. The LAPD requires full-time employees to supply a signed letter from their boss certifying that applicants are full-time employees who regularly cover news events with police or fire lines; freelancers must supply letters from three news outlets verifying they have completed assignments requiring them to cover such events. The Sheriff’s Department further imposes conditions on the news organizations themselves, even defining the eligible news reporting functions and requiring a copy of their business license. Both agencies also require a Live Scan criminal background check. In the past, incredibly, the process was even more onerous and capricious. In a 1970 court case brought by the Los Angeles Free Press, an alternative/underground paper that had been routinely denied such press credentials, a police spokesman cited such newspapers’ objectionable content: “the type of thing that they are reporting, the type of stories they are writing, what I would personally determine as being either pornographic or vile in my personal opinion. This naturally has an effect.” A sheriff’s official added, “One item that we raised an eyebrow about was the fact that some of their writings in the Free Press were pro-LSD, and some of their advertising was pro-marijuana, pro-abortion, and various other things that are a matter of record in their printing,…There also was advertising pertaining to sex advertising, and things of this nature, which we felt was not particularly in the best interest of the community or the children in the community, and that the Sheriff’s Department was not about to be a party to backing this type of a newspaper by issuing them a press credential.” Incredibly, despite what seems plainly unconstitutional content-based discrimination, the government prevailed, and the case law still stands. If it were up to me, I would want to see a state law authorizing local law enforcement to conduct a Live Scan criminal background check, and nothing more, before requiring them to issue a press credential for access behind police or fire lines. Anything further is none of their business, and quickly tips into a constitutional infringement, “a law abridging freedom of speech, or of the press.” Who’s a journalist? Simple: whoever is practicing journalism. And that’s -30- for this edition. *Editor’s Note: John Peter Zenger was a printer and journalist in New York City, who printed The New York Weekly Journal.[1]. He was accused of libel in 1734 by William Cosby, the royal governor of New York, was acquitted and became a symbol for freedom of the press. (Wikipedia)
Joel Bellman

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