A DISCUSSION OF LAW AND JOURNALISM

Bloggers Pass for Press: Who Gets a “Press Pass” In New York?

By Matthew Catania

There are two privileges that are unique to professional journalists.  The first is the protection of state shield laws.  This means reporters cannot be compelled to reveal the identities of confidential sources except in matters of national security.  The public policy behind this is that such sources would be unwilling to leak newsworthy information to the press without the immunity from repercussions that comes with anonymity. The second privilege is a press badge.  These passes grant journalists entry to events that are closed to the general public such as crime scenes and government press conferences. This promotes the dissemination of news.  The only problem with these privileges is that bloggers weren’t considered journalists by the institutions responsible for granting these privileges in New York.

This was an impediment for those bloggers whose reporting was functionally identical to that of journalists working in print, radio, and television. Bloggers were usually unable to land big scoops because there were no shield laws protecting their informants.  They were shut out of exclusive events for lack of press badges.  Bloggers had to be content with the crumbs of news left on the floor by the traditional news venues. This benefitted journalists in traditional media while smothering the blog as a news source in its infancy.  

The paradigm seems to be shifting.  In November of last year, three online journalists who had been denied press passes by the New York Police Department sued the city to rectify this discriminatory practice.  As part of the settlement, the city will now issue press passes to all journalists regardless of what media they use.  The criterion for a press pass is that they must be able to produce six pieces of journalism from the last two years.  A bill in the New York Senate would also extend the state’s shield law to bloggers.

One problem with the new system is its main requirement for obtaining a press pass.   The six articles need to be based on news that requires a press pass for access. How are bloggers to amass such articles in order to get press passes if they don’t have press passes in the first place?  It’s a catch-22 situation. The criteria for the six articles is undefined, which gives the NYPD wiggle room to deny press passes to bloggers whom were only able to cover the periphery of a newsworthy event.  Luckily, the new system requires the NYPD to respond within ninety days to appeals from journalists whose petitions for press passes were initially rejected.  (The previous system of ignoring blogger appeals in hopes that they would go away resulted in the 2008 lawsuit with a thirty page complaint and plenty of negative publicity.)  There is still concern that police officers will not recognize the privileges conferred by press passes at scenes of crimes and emergencies, as this has been a frustration for many traditional journalists.  Without this recognition, the press passes won’t be worth the paper they’re printed on.

Journalists in traditional media fear that their livelihoods may be at risk now that bloggers are being legitimized.  Some paid reporters suspect unsalaried bloggers will have more free time to attend newsworthy events than other journalists.  If there is an occupancy cap at these events, traditional journalists fear that may be shut out of many big scoops by a disproportionately large number of bloggers.  This fear is irrational given that bloggers tend to be unsalaried because they have day jobs elsewhere, not because they are independently wealthy with lots of time on their hands.

Another concern is that empowering journalists with press passes spells doom for journalistic integrity.  This fear assumes that all blogging is rubbish whereas traditional reporting is excellent. Of course traditional journalists would still want to have the same privileges they once enjoyed in the event that they become bloggers themselves. Once bloggers are treated as the equals of other journalists, their peers will eventually realize they have little cause to fear and hate them.  It’s not the medium that’s important, it’s the message.

Although bloggers and their sources will be protected by New York’s shield law, they still won’t have that insulation on a nationwide level.  Senators Schumer and Specter are sponsoring a bill that would change that.  The Obama administration, however, is opposed to a shield law on federal issues. This administration wants discretion to decide if a reporter gets immunity to remain with the Executive Branch.  The Fourth Estate, whether they be bloggers or reporters in traditional outlets, ought to put aside their infighting to stand up against federal suppression of the free press.

Update:  March 2, 2010:   The new rules have been announced.   There will be a public comment period through April 7, 2010 after which hearings will be held in Lower Manhattan.

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