Wednesday, August 09, 2006

What is "the press"?

In this morning's (August 9) entry, "To Riverside, With Love," I note that an earlier entry, "Caution: Wide Load, Rain Forest Ahead," August 7, "has now been expanded into a newspaper op ed column."

A trivial matter by most standards, from another perspective it represents an illustration of one of those historic turning points.

What am I talking about? I'm talking about the fact that, and the way by which, a blog entry became a mainstream media column.

It turns out that some opinion page editors read blogs. One of them decided that "Caution: Wide Load, Rain Forest Ahead" might make a good column for his paper. He emailed me, and two days later there it was in print.

This, folks, is new. The bloggers have long played the role of "the people's journalism review," reading and commenting upon the mainstream media. But increasingly the flow, the interweaving of media and blogs, is going the other direction as well.

(a) The blogosphere has become a kind of mass media of its own -- at least the blogs with the multi-hundred-thousand hits a day, or State 29 with 20,000 unique visitors a month (and goodness knows how many individual hits). If you consider all of our nation's 2000 conventional newspapers, there are blogs with more readers ("greater circulation") than many of those papers. At least some of the time newspaper subscribers used to spend reading papers is now spent reading blogs.

(b) The mainstream media can no longer ignore the investigative journalism of journalism done by the bloggers as, for example, Dan Rather and CBS discovered when bloggers revealed that the "records" of President George W. Bush's military service, which CBS relied upon and reported, were fake.

(c) Mainstream media gets leads and story ideas from blog entries.

(d) Blogs as such aside, the Internet has now become the primary location for the mainstream media -- as it has for every other institution, from agencies of the federal government, to colleges, to the Fortune 500 to small local businesses. Listen to NPR, or watch the ABC Evening News, and you're regularly referred to their Web sites where they can expand the stories, and provide the background that is necessary to understanding but impossible to fit, like square pegs, into broadcasting's round holes. (Similarly, advertising from billboards to newspapers to television, often as not, mentions the advertiser's Web site -- a Web site that is, in effect, the company's online store, complete with a full catalog of items and a means for ordering and paying for them.)

(e) But the mainsteam media have gone beyond merely using the Internet as a filing cabinet, or closet, to contain "all the news that doesn't fit." They have moved into the two-way communication of the blogosphere as well and are now creating their own blogs, such as the Des Moines Register's blogs.

(f) And this morning (if not many times before) we have had the experience of a commercial newspaper's opinion editor selecting a column from the blogosphere to put in print.

As I prepare to teach another fall semester's "Law of Electronic Media" (at the UI College of Law) I cannot help but reflect on what it is we mean by "media" in 2006 as distinguished from what it meant 50 years ago -- or even five years ago. No one fully comprehends the extent, or the implications for the future, of the convergence and changes we're living through -- in terms of technologies, industries, individual and social behaviors, media formats, economics, business models, and so forth. Not the bloggers, the mainstream journalists and editors, the academics who study it -- not even the multi-million-dollar-a-year corporate CEOs whose job it is to understand this stuff -- no one can tell you with certainty what's happening.

When I wrote How to Talk Back to Your Television Set (Boston: Little, Brown, and New York: Bantam, 1970), the title captured reviewers' and readers' attention because it was so ludicrous. The mass media, television included (indeed, perhaps TV most of all) was one-way media; from one to many, with no return path. (Letters to the editor and the occasional full op ed column, or audience members' calls to talk shows, were (a) a tiny sampling of the public dialogue, (b) edited and presented by the media, not by the author, up to and including, (c) the media's legal right to refuse to publish at all.)

I'm reading a couple of books at the moment that take a stab at telling us readers what's happening: David Kline and Dan Burstein, blog! (CDS Books, 2005), and Yochai Benkler, The Wealth of Networks (New Haven and London: Yale University Press, 2006). They're both helpful, but neither is dispositive.

What does seem clear is that, whatever else they may have done, the Internet, Web and blogosphere have turned a from-one-to-many media environment into a from-many-to-many media environment -- whatever the implications and future evolution of these changes may be.

Which brings me to the title I've put on this entry, "What's 'the press'?"

It's a reference to an exchange, of sorts, between U.S. Supreme Court Justice Potter Stewart and Chief Justice Warren Burger in the mid-1970s. Justice Stewart's salvo came in "Or of the Press," 26 Hastings Law Journal 631 (1975), a reprint of a speech he gave at the Yale Law School. The Chief Justice's response came in a separate concurring opinion in National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

I won't try to summarize the whole of the exchange here, only what I believe relevant to this blog entry. [It's referenced briefly in the Law of Electronic Media casebook, Carter, Franklin and Wright, The First Amendment and the Fifth Estate (New York: Foundation Press, 6th ed., 2003), p. 34.]

That requires a reminder of the language of the First Amendment to the U.S. Constitution. It provides, in part, "Congress shall make no law abridging the freedom of speech, or of the press . . ." (emphasis supplied).

The question is, what does "or of the press" mean? Is it redundant? Did a hurried editor merely overlook the need to delete it? Did it contemplate rights regarding expression by individuals only -- sometimes taking spoken form and sometimes written? Or are there two separate rights here -- a "freedom of speech" for individuals and an additional set of rights, a "freedom of the press," for the institutional, corporate, mainstream media? Justice Stewart thought the latter; the Chief Justice the former.

The Chief Justice's argument was, in part, that if "the press" only refers to the institutional mainstream media -- large media corporations such as the publishers of the New York Times and Washington Post -- the definition excludes the only kind of "newspapers" that existed at the time the First Amendment was adopted. "The press" at that time was not that different from the "underground newspapers," or the machine copied broadsides and brochures being produced on machine copiers in the 1970s. On the other hand, if such "publications" are included as a part of "the press" there is little or no difference between "the press" and the "free speech" of individuals.

The justices' "debate" was conducted before the Defense Department's network came to be called "the Internet," and long before "the Web," with its individuals' Web pages, Facebook, and blogs. Their existence only further complicates the debate.

This blog, even if read by no more than a tiny franction of the number of persons visiting the New York Times' Web site, or the Des Moines Register's blogs, is no less instantaneously accessible. It uses no less a proportion of a computer screen once loaded. It and the 40 million-plus other blogs have become a source of ideas, and even columns, for the mainstream media. Meanwhile, the blogs look to the mainstream media as a source of material to comment about.

Might it not be useful for us, right about now, to take a crack at reconceptualizing what we think is and is not "the media"? Have we created a truly new institution that is in the process of replacing what we used to think of, constitutionally, as "the press"? Or are the differences really only marginal and insignificant?

Indeed, today, "What is 'the press'"?


John Neff said...

While you are at it what does speech mean?

When the ammendment was adopted if someone gave a speech it was transcribed and the edited transcription copied or printed either in the record, in a newspaper or some other printed form.

When mechanical and electronic transcription became available the transcriptions were of the original speech.

One can read aloud from a newspaper converting it into speech. When I was a child they used to read the Sunday comics over the radio which suggests that an editorial cartoon can be converted into speech.

In other words an idea can be expressed verbally either by speaking or singing,in writing and in the form of an image or a set of images. My view is that all of these are protected forms of discouse.

However I am confused about how buring a flag becomes a form of discourse. Would it be a protected form of discouse for someone from ISU were to burn a Hawkeye flag?

Sickofspin said...

"What is 'the press'"?

That's an excellent question. It used to mean honorable journalism, media organizations simply reporting the news in a straight-forward fashion, responsibly, and objectively.

These days however, mainstream media reporting has become editorialized and selectively edited. I contend that more and more mainstream media sources are feeding us only the news they wish us to hear.

Rexusnexus said...

I have found myself thinking in circles after reading your post, usually coming down on the side of Justice Berger. I think "the press" the framers speak of has to be the printing press, and not the group of people commonly referred to as "the media," or "the press." If not, then the Amendment does not identify what "freedom" is given to "the press." It seems that if the framers intended to provide special rights to an institutionalized group of people, they would have said "freedom of the press TO [protect sources, access government officials, etc.].

Of course, if you accept Stewart's position, the inclusion of both speech (spoken word) and press (printed word) would seem to preclude the extension of this freedom to other forms of expression (dance, burning of draft cards, etc.). I suppose the courts have come down on the side of protecting all forms of expressive conduct, and giving both media members and non-members generally coextensive rights (i.e. Judy has no right to protect Scooter).

Could "freedom of the press" mean that the government has no right to regulate the medium (old = printing press, new = coaxial cable). Could the framers have been that prescient to see the extensive problems that new forms of media would present: newspapers, cable television - the medium is the message; telephone - the medium is not the message; internets connections--????. If net neutrality fails, and internet providers gain the freedom to filter information, will a constitutional challange to that filtration succeed? I have absolutely no idea.

Nick said...

John: There are many ways of communicating without verbiage -- either spoken or written. A catcher uses hand signals to communicate with the pitcher. A blinking yellow light communicates "caution." The arts -- architecture, sculpture, music -- are non-verbal forms of communication. A farmer may call hogs with a human sound that involves no words. A mime, or a dancer, is communicating with human movement and no words, which gives rise to litigation over nude dancing. And so it is that burning a flag, or a draft card, is also communicating an idea. And certainly I would have to include a Hawkeye flag in that category.

Nick said...

Sickofspin: Thanks for weighing in. While I feel neither inclined nor obliged to come to the defense of today's corporate journalism, I'm afraid "the good old days" might have been no more to your liking than today. It was Mark Twain who observed many years ago that "If you don't read the newspapers you are uninformed; if you do read the newspapers you are misinformed." And Thomas Jefferson, you'll recall, went into office saying, "If I had to choose between newspapers without government or government without newspapers I would not hesitate to choose the former." Upon leaving office he could find nothing good to say about them. Compared to the standards of the late 18th and early 19th Century journalism today's media is the poster child for "fair and balanced."

Nick said...

RexusNexus: Note, in connection with your last question, that the Supreme Court has ruled that with the right of First Amendment free speech goes the right to censor everyone else. That is, the owner of a quasi-monopoly newspaper, like the LA Times, can refuse to sell you advertising space -- and can certainly refuse to publish your letter to the editor or op ed. The same applies to TV and radio, and cable -- except for the local access channels (which is why, among other reasons they are so important).

ATT, by contrast, did not have that right -- nor did it raise those concerns with the ACLU. Everyone who wanted one could have a phone; and once you got it, you could say anything you wanted over the phone.

This is what I have called "the separation of content and conduit." It should be enough that an owner can suck money out of both ends of the wire (those who provide programming for cable, and the subscribers who pay to get it) without also having an ownership (and therefore censorship) interest in the content of the programming.

Now apply all of that to the Internet and its future and think about it.

John Neff said...

Ok if hog calling is a form of communication (do the folks in communication studies know this?) what about tossing a firecraker into a hog barn? If that is a form of communication what is the message?

Nick said...

John: Why do I have the sense you know more about firecrackers in hog barns than you are revealing? Are you seeking from me a legal defense to such an errant youth? Perhaps your best protection is the Statute of Limitations.

There is usually some overlap between "speech" (in the constitutional sense) and "action." Consider a picket line, or a "protest march/parade." A dance, with no "speech" in the conventional sense may still be "speech" in the constitutionally protected sense.

(And there are, of course, forms of action (containing "speech") and even almost pure "speech" as to which the Court may very well find some overriding value that warrants "abridging the freedom of speech" in that limited context.)

Whether action or speech, I'm sure the hogs got your message.