[DMCA-Activists] Gillmor: The Gathering Storms Over Speech

[Seth Johnson]

> http://dangillmor.typepad.com/dan_gillmor_on_grassroots/2005/03/the_gathering_s.html


The Gathering Storms Over Speech


By Dan Gillmor

March 05, 2005


Apple Computer's disgusting attack on three online journalism
sites, in a witch hunt to find out who (if anyone) inside the
company leaked information about allegedly upcoming products, has
taken a nasty turn. Too bad it's not surprising -- and
journalists of all kinds should be paying attention.

A judge in California has decided that the sites don't qualify as
"journalism"
(http://seattlepi.nwsource.com/business/aptech_story.asp?category=1700&slug=Apple%20Secrets)
(AP) under state law and/or the First Amendment. By his bizarre
and dangerous standard, I apparently stopped being a journalist
the day I left my newspaper job after a quarter-century of
writing for newspapers. (Note: At the request of lawyers for the
sites, I've filed declarations -- here
(http://www.eff.org/Censorship/Apple_v_Does/declaration_gillmor.pdf
[104k PDF]) and here
(http://www.thinksecret.com/filings/gillmordeclaration.pdf [1MB
PDF]) -- saying that in my opinion these sites are performing a
journalistic function. I haven't been paid to do so.)

Apple's bullying is bad enough. But the California case is just
one of several harbingers of trouble for the online journalism
world.

Another was the deliberate provocation from a member of the
Federal Elections Commission, Bradley Smith, who's a harsh
opponent of the McCain-Feingold law regulating campaign finance.
He told CNet that current law requires the FEC to regulate the
speech of bloggers and other online denizens who dare to discuss
politics
(http://news.com.com/The+coming+crackdown+on+blogging/2008-1028_3-5597079.html?tag=nefd.pop).

I regard this more as saber-rattling than a serious threat, at
least for now. And it's also clear that Smith is trying to get
Congress to punch a hole in the law to make it ineffective. I
find myself agreeing increasingly with folks on the political
right, including the Heritage Foundation's Mark Tapscott, who
(among others
[http://lashawnbarber.com/archives/2005/03/04/liberal/]
[http://michellemalkin.com/archives/001669.htm]) observes that
the law is becoming an excuse for the outright regulation, and
suppression, of speech
(http://tapscottscopydesk.blogspot.com/2005/03/fec-commissioner-says-court-decision.html).

As someone who supported the intent of McCain-Feingold but now
agrees it needs reform if not repeal (and then try again with
something better), I wish there was some recognition from those
who want to torpedo the law outright that modern politics is
being wrecked by the overwhelming influence of money, with
serious effects on our republic. When politics becomes a system
of one-dollar, one-vote -- and it has become precisely that in
recent years -- we need to do something to restore at least a
semblance of fairness.

But to use this desire for reform as a bludgeon to wipe out free
speech in politics, precisely the kind of speech the nation's
founders so ardently wanted to promote, is a perversion of their
intent and common sense. Smith's remarks are a red flag waving at
the blogging bulls, and they're responding just as he surely
hoped -- with fury.

Meanwhile, several weeks ago, two well-meaning members of
Congress introduced legislation designed to address the
increasing attacks on professional journalists. The Free Flow of
Information Act (H.R. 581) has some good points
(http://thomas.loc.gov/cgi-bin/query/D?c109:1:./temp/~c109TMzzQV::),
namely its attempt to give reporters a way to shield sources from
unwarranted exposure. But it sharply circumscribes the definition
of who's a journalist -- and appears to explicitly exclude
bloggers and other non-traditional online journalists.

Who gets the protection? The legislation would give it to:

    A) an entity that disseminates information by print,
broadcast, cable, satellite, mechanical, photographic,
electronic, or other means and that--

    (i) publishes a newspaper, book, magazine, or other
periodical;

    (ii) operates a radio or television broadcast station (or
network of such stations), cable system, or satellite carrier, or
a channel or programming service for any such station, network,
system, or carrier; or

    (iii) operates a news agency or wire service;

    (B) a parent, subsidiary, or affiliate of such an entity; or

    (C) an employee, contractor, or other person who gathers,
edits, photographs, records, prepares, or disseminates news or
information for such an entity.

In other words, bloggers need not apply unless they work for a
major publication or broadcast.

See a pattern?

We're moving toward a system under which only the folks who are
deemed to be professionals will be granted the status of
journalists, and thereby more rights than the rest of us. This is
pernicious in every way.

Mass media journalists and their bosses should be leading the
fight against what's happening to bloggers. I fear they won't,
because old media typically refuses to defend the rights of new
entrants until the threats against the new folks directly
threaten everyone. But my former colleagues in Big Media should
understand that when we distinguish among kinds of journalists,
discriminating against some because they're not working for
organizations deemed worthy (or powerful) enough, trouble will
arrive soon enough for everyone.

In a world where anyone can be a journalist, we can't let
government or Big Media decide who has the right to inform the
public about matters of interest or urgency. The priesthood
should be dissolving, not gaining strength -- yet rulings and
legislation like these move things in precisely the wrong
direction.

09:17 AM