Cyberspace Law Seminar

University of Iowa College of Law

Professor Nicholas Johnson--Inst.

Spring 1999

Scott M. Kruger⁽¹⁾

If anyone doubts the power the press wields over government and the other power bases in society, they need only look at the disarray wrought by the press in the past year, culminating with the impeachment and trial of a president. The last two constitutional crisis were set into motion by the press, demonstrating its considerable power as an adversary to the Congress and the White House and fulfilling its role as society's watchdog over government.

For a democratic government to remain accountable to the society it serves, the public needs to be enlightened and aware of how the government is functioning within local, national, and even global communities.⁽²⁾ The primary goal of the First Amendment is to protect society's ability to receive such enlightenment. To this end, society needs a strong, investigative, adversarial press; free and unhampered from government regulation.⁽³⁾ The purpose of the constitutional guarantees of a free press was "to create a fourth institution outside of the Government as an additional check on the three official branches." ⁽⁴⁾ The free press exists to provide "organized, expert scrutiny of government."⁽⁵⁾

It was in this function that the press reported on the events that lead up to the resignation of one president and the impeachment and trial of another. During such events in history, the press institution has been put on trial and evaluated by the public. ⁽⁶⁾ Watergate is considered to be a high point in the history of journalism, bringing pride and respect to the profession. However, today public confidence in journalism is at an all time low. The difference may be where a respected national newspaper developed the story that ended the Nixon presidency; the story that touched off the Clinton scandal was first published on a lonely web page operated by a single person in his one room apartment.⁽⁷⁾ The newspaper has long been held as the bastion of journalistic professionalism and credibility, on a different level from the emerging "pseudo-press" comprised of tabloids, infotainment shows, and the new breed of "garage journalists" appearing on the Internet. ⁽⁸⁾

It would be unfair to the medium to say that the Internet⁽⁹⁾ is the cause for all of journalism's ills. Changes in technology, changes in how information is disseminated and marketed and declining public opinion of the press all threaten the core principles that define journalism's role in a democratic society. ⁽¹⁰⁾ This article will set out to explore how technology, specifically the Internet, is changing journalism's environment. What was once an information market for the mass community is now targeting the individual, what was once an industry for a select few with the resources and infrastructure has been broken wide open into cyberspace, allowing entry to anyone with a computer and a modem. This article will also go back over fifty years and examine a similar crisis to the validity and effectiveness of the press and find that, while the journalistic world has changed greatly in that time, the solutions to the problems are much the same as they are now.

The American people are questioning the legitimacy of press power in our society. The foundation of press institution is being compromised. The Internet should be a First Amendment windfall for the press, allowing it to fulfill its constitutional duty effectively by not only providing information from unlimited sources, but also providing a conduit for discussion between diverse communities. Instead, it may let fall a press institution that is already on precarious footing. It is time for serious introspection of journalists from all media or the press that democracy needs and society depends upon will crumble.

Journalism separates itself from other forms of communication and entertainment through the ideal that the press exists to provide the public the information necessary to function in a democratic society.⁽¹¹⁾ In short, democracy depends on a free press.⁽¹²⁾

Public opinion is often the only available control over the power bases of a society. ⁽¹³⁾ To be an effective control, the public opinion needs to be fostered by a strong press able to provide society with information indicating when its interests are at stake, be able to mobilize the public to defend their interests, and to convey the interests and demands of society to the policymakers that serve them. ⁽¹⁴⁾ As Edwin Baker put it; "Participation by the uninformed and unreflective is hardly a gain." ⁽¹⁵⁾

The goals of the free press and speech clauses of the First Amendment are to foster an informed electorate, ⁽¹⁶⁾ and to serve as a check against any abuses of power by the government.⁽¹⁷⁾ To this end, the First Amendment creates the mechanism for providing the mechanism for the public to scrutinize and even exert control over the government, as Justice Stewart, in an address at Yale Law School, explained:⁽¹⁸⁾

Hence, the most important function the press has within the framework of a democratic society is the role of a watchdog over abuses of power. Such a press check on power particularly applies to abuses wrought by the government, however this can (and does) include checks on all social abuses of power regardless of whether the abuser is from the private, public, or corporate sector. Edwin Baker writes: "[D]emocracy requires a free press--a press to which it gives relatively specific assignments. A free and independent press can make important structural contributions that are as great or greater than the constitutional and administrative devices just mentioned. If corruption or incompetence of [government] is the problem, exposure is at least part of the remedy. The possibility of exposure can deter corruption and create incentives for proper performance. Exposure promotes the orderly replacement or rotation of [government leaders]." ⁽²⁰⁾

However, for the press to be socially effective, it must hold the trust of the public it serves. The freedom of the press and its watchdog role over government, as protected by the First Amendment, can be rendered ineffective and irrelevant by the irresponsible actions of reporters, editors and owners, destroying the institution by allowing it to decay from within. ⁽²¹⁾ A society that neither trusts the press to do its job responsibly nor values the role it plays as educator, informer, and watchdog against government abuse is more likely to penalize the press when it makes an attempt to fulfill these important goals. ⁽²²⁾ There is little value in a watchdog that does not hold the trust of its beneficiary.

Crises of conviction from within the journalistic community and concern about the institutional press being in danger of becoming unable to perform the duties the Constitution asked and upon which society depended is nothing new. In 1947, the Commission on Freedom of the Press published its report entitled "A Free and Responsible Press." ⁽²³⁾ In it, the Hutchins Commission Report provided an affirmative answer to the question: "is the freedom of the press in danger?"⁽²⁴⁾

The Commission identified a number of problems that plagued press freedom then, some of which remain today: concentration of press ownership and control in the hands of a few individuals and corporations; limited access of ordinary citizens to press machinery to express views and opinions; and the failure of those who own or control journalism operations to adequately serve the needs of society. ⁽²⁵⁾ But the Commission did more than simply criticize the press conditions of the era. It laid out recommendations for journalists and the press to better serve the public. In doing so, the Commission articulated what is sometimes referred to as the social responsibility theory of press freedom. ⁽²⁶⁾

The intent of the Hutchins Commission Report was to study "the role of agencies of mass communication in the education of the people in public affairs."⁽²⁷⁾ As the Commission evaluated the quality and effectiveness of the press, it provided a description of an ideal press, against which actual press performance can be measured. The press should 1) provide "a truthful, comprehensive, and intelligent account of the day's events in a context which gives them meaning," a commitment evidenced in part by objective reporting; 2) be "a forum for the exchange of comment and criticism," meaning in part that papers should be "common carriers" of public discussion, at least in the limited sense of carrying views contrary to their own; 3) project "a representative picture of the constituent groups in the society"; 4) "present and clarify the goals and values of the society;" and 5) provide "full access to the day's intelligence," thereby serving the public's right to be informed. The Commission also identified three tasks that are central to the press's political role: to provide information, to enlighten the public so that it is capable of self-government, and to serve as a watchdog on government. ⁽²⁸⁾

The assumption gathered from the Hutchins Commission's goals for the press is that what a democratic society requires most from the press is information. ⁽²⁹⁾ Not just the facts, but the facts within the context of the surrounding environment. Thus, the flow of information needed to be two-way, with the press measuring existing social values and needs as well as informing and educating the public. ⁽³⁰⁾ This also lead to a compact of trust between the public and the press, just as students depend on their classroom teachers to give them an accurate vision of the world around them, providing a variety of viewpoints and not misleading or misrepresenting what has, or will, happen.

The Hutchins Commission submitted its evaluation of the institutional press during a period of increasing concentration of mass media.⁽³¹⁾ The press industry, comprised of small, locally owned, privately operated press organizations with a small, community audience, was growing into the a mass media giant owned by a select few huge corporations seeking a national, even global, audience in order to maximize profits.⁽³²⁾

The problem was believed to be that a few large media corporations could not adequately meet the needs of society. What was once controlled by several diverse sources was now controlled by a select few corporations with their personal stake in what information society received (or doesn't receive). The Commission's concern that with only a few large media corporations in control over information, ideas, and access to public debate, the information society would receive would become less diverse and more homogenized. ⁽³³⁾ Lee Bollinger explained:

The Commission was also critical of how journalism was no longer a community service but a "big business," the operation of which was done by "big businessmen" rather than "professional journalists." ⁽³⁵⁾ Corporate managers were ruled by a fiduciary duty to make money for the company; this took precedent over any social obligation to foster an informed electorate or serve as a government watchdog. This meant abandoning journalistic judgment and integrity when profit seeking lead to the dumbing down of news, valuing shock or entertainment over substance and usefulness. Lee Bollinger explained how the Hutchins Commission identified the problem of mass media corporations' profit motives overwhelming traditional journalistic integrity: ⁽³⁶⁾

Furthermore, a monopolistic media had the ability to suppress differing viewpoints, all the while claiming objectivity for what is in reality a partisan viewpoint. ⁽³⁸⁾ The Commission did assert that a monopolistic press was obligated to present all side of an issue and provide the public information necessary to remain involved in society. ⁽³⁹⁾ But in the end, the monopolization of the media meant less information, a loss of diversity, and a lower chance of the public reaching the "truth" of the news.

Fifty years ago, mass media meant mass audiences. However, by the time the Hutchins Commission report had been released, the technological tide had already begun to change, making it efficient (and profitable) to reach smaller audiences. Hence, information offered by the press did not need be marketable to a large, homogenous audience, but could be more diverse and more focused toward narrower interests.

Make no mistake; big corporations still are in ownership and control of the media. And in an era of increasing deregulation, it is unlikely this trend will reverse itself anytime soon. However, while control of the various media may remain under the control of a select few large corporations, journalism's marketing focus has shifted from the mass audience to the smaller, specialized demographic. Randall Bezanson explained:

Conglomerate control of media has allowed diversity to exist, providing society with limitless variety of information and fostering not a mass audience but smaller communities of information consumers. ⁽⁴¹⁾ Corporate journalism is still profit motivated journalism, but providing a variety of pluralistic, community-based news media outlets serving diverse groups yields the highest profits. Edwin Baker explained how a monopolistic or conglomerate media promotes diverse and pluralistic viewpoints within a community:

Today, instead of mass information for a mass audience, the news media has the opportunity to reach as well as relay the views and values of smaller communities. However, the technological momentum toward more singular, identifiable audiences has not stopped. The Internet has now brought about a full reversal of the economies of production--from the large scale to the small scale--making the profit potential in media endeavors not in appealing to mass audiences but to reaching very focused, narrow bands of consumers. ⁽⁴³⁾ The monopolistic media from the era of the Hutchins Commission has reversed itself, as Randall Bezanson explained: "[T]he mass audience is being replaced by the small and demographically focused audience, in which general coverage is being replaced with specialized content and in which the audience--the consumer of news--and the advertiser are taking control in a publication environment that has shifted from a top-down to a bottom-up paradigm." ⁽⁴⁴⁾

However, just as the Hutchins Commission was concerned about the press being unable to adequately fulfill its social duties by serving only a mass audience, society would be served just as poorly by a press only providing customized, individualized information. For democracy to function, society needs not to be shielded from its internal differences and herded in homogenous groups, but to confront its differences, explore its diversity and reach consensus through discourse.⁽⁴⁵⁾ Likewise, society needs not to be singled out as individuals and have only a narrow band of interests catered to by information providers. Yet, as will be explored in the next section, that is where technology is taking society. Such a situation is nothing less than journalistic anarchy.

Journalism is all about telling stories--reporting the news. In journalistic circles, the definition of news is, in part, the reporting of events and trends by individuals not directly involved but who have either directly witnessed the events or interviewed people who have. ⁽⁴⁶⁾ Journalism is also about being a gatekeeper for the news, controlling who reports what information based upon its value to the public.

Online journalism is much more than simply publishing news stories online. The Internet's potential as a medium can transform, even revolutionize, how journalism is thought of and practiced. ⁽⁴⁷⁾ It offers the press a new way of providing information, likewise offering the public a new way of receiving and processing that information. The Internet also has the potential to displace printing as the principle conduit for information, substantially expanding capabilities for processing, storing, organizing, communicating, and disseminating information.⁽⁴⁸⁾ Online journalism will not replace its print counterpart entirely; rather the Internet news sites will displace newspapers, moving print to the margins of the literate world. ⁽⁴⁹⁾

Relevant to this discussion, however, is how the Internet revolutionizes publishing--the Web is a mass medium literally at everyone's fingertips. The Internet, for the first time in history, makes publishing a truly democratic enterprise⁽⁵⁰⁾--allowing for information to be disseminated by all manner of independent, non-corporate-owned journalists. ⁽⁵¹⁾ The comparatively low cost of publishing on the Web has borne a new breed of independent online journalists working outside the confines of the current, traditional, corporation-run news industry. ⁽⁵²⁾

Individuals, non-profit organizations, and new corporations are all getting into the online journalism business, becoming more significant players in the information marketplace. Some, like the nonprofit Institute for War and Peace Reporting, become a part of online journalism to fulfill some altruistic vision.⁽⁵³⁾ However, most enter the online world because of the (perceived) profit potential. Nearly two-thirds of the cost of creating a newspaper or magazine for sale lies in the cost of production and distribution. Remove these costs so all that remains is the cost of developing content and one can see the profit potential of online news reporting. ⁽⁵⁴⁾

And as with every other Internet related endeavor, one must keep an eye out for Microsoft. The software giant is already making strategic and aggressive moves into the news and information industry--the software company has carved itself more than a sturdy foothold in the media world with the creation of MSNBC, Sidewalk, and the online magazine Slate, as well as moves to expand into the cable and telecommunications industry.⁽⁵⁵⁾ All of the information society has traditionally received through newspapers--news; entertainment guides; travel advise; shopping guides; movie, theatre and entertainment schedules; entertainment reviews; stock prices; business news; advertisement, coupons, and classifieds--virtually everything a newspaper contains can be delivered more efficiently through computers and the Internet. ⁽⁵⁶⁾ This has newspaper publishers looking over their shoulders for the Microsoft juggernaut.

Just as with publishers, there has been an explosion of new reporters coming online. The Internet presents the opportunity to anyone who publishes and distributes around the world information via a web site to claim status as a journalist. ⁽⁵⁷⁾ The First Amendment provides no guidance as to exactly what the "press" is nor a definition as to who may be considered a "journalist." ⁽⁵⁸⁾ Hence, individuals publishing news, however questionable or dubious in content, from computers set up in their basements are considered to be journalists just as much as those writing and reporting for the more traditional institutional news industry. ⁽⁵⁹⁾

With the proliferation of "garage journalists" like Matt Drudge and similar ilk,⁽⁶⁰⁾ the Internet becomes a minefield of several sources of news and information of dubious value. ⁽⁶¹⁾ The new breed of independent, online journalists are without the benefits of the system of checks and balances built into a daily newsroom routine where a story goes through a series of internal checkpoints before it ever arrives on a reader's doorstep, computer screen, radio, or television. This is not the case in an environment where anyone with a computer and a modem can publish. In the newspaper business, a story doesn't get printed without crossing an editor's desk, unlike online news where publishing a story is potentially only a keystroke away. ⁽⁶²⁾

The Internet has become a significant force in how news and information is presented and disseminated to the public. The recent shift to the online medium from the traditional print and broadcast media has led to conflict among journalists from both worlds about the degradation of traditional newsroom cycles and the tendency for online news to be reported inaccurately and carelessly. ⁽⁶³⁾

Editors and journalists working on Internet news sites complain that there is little consistency in ethical decision making across the profession. While traditional values are still relevant--and for the most part adhered to--online, there is sharp disagreement about how the old values and standards translate to a medium defined by its immediacy, interactive capability, burgeoning competition, and growing pressure to turn a profit.⁽⁶⁴⁾ The problem is that the medium is so new that there has been little time to step back and examine what the new medium has wrought. The challenge before the online news industry is to make good ethical decisions in an environment that has neither a long journalistic tradition nor an opportunity for reflection. ⁽⁶⁵⁾

While many online news site look to their print counterparts as models for ethical decision making, the nature of the medium and of those who look to the internet for news and information makes this tactic problematic. It would be easy for journalists to repurpose existing ethics codes and the values and common sense of the print newsroom to online journalism. ⁽⁶⁶⁾ However, the places online journalism may take the news industry and it readership may render traditional journalism value and ethical considerations obsolete. ⁽⁶⁷⁾ Furthermore, newspapers have based their ethical standards those of the community it serves. Print newspapers make ethical decisions based on their local community's standards. Most newspapers have a long-standing relationship with their readership and are able to make content decisions based in part on their knowledge of their readers. ⁽⁶⁸⁾ The online readership, however, is potentially national, even international, in scope, making it impossible to make a universal judgment about what are and are not acceptable journalistic practices. ⁽⁶⁹⁾

A professional conflict has also arisen between the traditional news media and its newer online counterpart. The community of online journalists, both of the established press and the new pamphleteers, tend to be anti-establishment, skeptical of the media's traditional role as a gatekeeper of information. ⁽⁷⁰⁾ The notion of web journalism is that information should be unrestrained, flowing freely to the public who can then make the judgement whether the information is important or of value. ⁽⁷¹⁾

Traditional journalists see themselves as people trained and experienced as journalists, whereas people who use the Internet to merely act as journalists. They feel the difference between the two groups is that traditional journalists adhere to an established ethics and value system, and the online group feels it doesn't have to. ⁽⁷²⁾ Likewise, industry critics see the primary difference between online journalism and more traditional, established media outlets is credibility--press institutions like NBC or The New York Times are considered to be more careful about the sources they use in their stories, their reporting is more balanced, and they are careful to maintain objectivity and remain unbiased. ⁽⁷³⁾

News and information provided by the press has served as a common thread, connecting all the facets of a large, fragmented, diverse and individualistic society. "Editorial judgment has permitted us to enjoy the fruits of this common conversation." ⁽⁷⁴⁾ However, the technological changes of the past decade give cause to rethink and reevaluate notions of a free press and free editorial judgment, "for the news organization as we now know it is fundamentally changing because of technology." ⁽⁷⁵⁾

Editorial judgment serves as the gatekeeper to all the information available to society. News organizations serving mass audiences--from local communities to a national audience--had the duty to sort the information society needs from that which society does not. This refined news product is then packaged and made available the media's potential audience. ⁽⁷⁶⁾ Randall Bezanson likened the editorial process to browsing the aisles at a media department store: "[T]he mass market [news media] is like the department store of old: It bundles lots of types of merchandise together to attract a large audience and then lets the readers walk the aisles, in the conceit that forced exposure to all the bundles will benefit, even educate, the reader." ⁽⁷⁷⁾

Strong editorial judgement at all news media, at all audience levels, helps create a linkage between communities and promotes discourse about divergent viewpoints. Randall Bezanson wrote:

However, with the online explosion of new reporters and publishers providing news and information, the Internet has created a system where there is an oversupply of information. "Data Smog"⁽⁷⁹⁾ is the haze of information available on new technologies, such as the Internet--so much information that it would be impossible for individuals to sort through and process it all. The Internet has created a "global electronic library of unprecedented scope and value. But where information was once a precious commodity, there is now a glut which has devalued information to the point that most of it is ignored and discarded. ⁽⁸⁰⁾

The problem is that there is so much information available to the individual that it would be impossible to sort through and digest it all. As Randall Bezanson put it: [W]hile the amount of raw information, opinion, data, perspective and context, etc., is virtually unlimited, with no effective barriers to entry for its dissemination, the task of assembling, assimilating, rendering judgment, and producing material in the form of 'a truthful, comprehensive, and intelligent account of the day's events in a context which gives them meaning' is being conducted by very few organizations." ⁽⁸¹⁾

The challenge before both the press and the public is in dealing with this "oversupply of information"--the problem for editors as well as consumers is deciding what information is relevant and important and what should be discarded. ⁽⁸²⁾ Randall Bezanson asked:

The future of editorial judgment apparently lies in the technology. The responsibility of editorial judgment is being transferred from the central mass media market to the narrower, segmented economic market, finally to small special interest communities and, "ultimately, to the individual as software increasingly enables individuals to manipulate, control and manage the kinds of information and opinion to which they are exposed." ⁽⁸⁴⁾

The online buzzword for this process is "push:" the concept of delivering information to consumers rather than expecting them to seek it out on the Internet--the "pull' model.⁽⁸⁵⁾ "Push " empowers online readers by letting them specify and manage what types of information they want delivered. The most effect and efficient "push" applications allow readers to personally customize and "micro-tailor" their news choices. ⁽⁸⁶⁾

The Web will continue to enable publications for smaller, more specialized audiences. Online news sites allow information to be micromanaged to individual tastes and preferences--allowing individuals to create their own personal newspaper. ⁽⁸⁷⁾ The ultimate outcome of this trend will be publications for audiences of one, completely personalized according to individual preferences, served out of large editorial databases or assembled on the fly by intelligent agent software that scans the Web for news and information that meet the individual's profile of interests. ⁽⁸⁸⁾

The MIT Media Laboratory is generally considered the birthplace for the truly personalized, customized news service commonly referred to as the "Daily Me." ⁽⁸⁹⁾ The service provided by this information personalization software are "egocentric;" the user chooses what he wants to read and filters out other unwanted of (apparently) uninteresting information without so much as a glance at the headline. The roles of the editor and reporter--the traditional journalistic gatekeepers of information--are limited if not eliminated all together in deciding what information the user receives. ⁽⁹⁰⁾

Your "Daily Me" newspaper can be built through a number of methods. The MIT version, FishWrap, asks users about their hometowns and personal history and well as their academic and personal interests to build a user profile. From that profile, key words are extrapolated and used to search news stories residing in the computer's database. ⁽⁹¹⁾ Being a graduate from the University of Iowa, FishWrap would ensure that I never miss a story containing some reference to my alma mater. After a user is finished browsing the online paper, the system records what stories were read, which were ignored, and make adjustments to the user profile as necessary for the next edition. ⁽⁹²⁾ FishWrap also creates a single front page, the content of which is determined by the users. If enough users think a particular story is significant enough that everyone else should read it, FishWrap runs that story page one. This feature was implemented to allow readers to enjoy the breadth of community interests and provide exposure to information outside the realm of a single user's personal choices. ⁽⁹³⁾

Most customized news services allow information consumer preferences based on genre or on information sources. PointCast is a downloadable system that displays news and information not only through its desktop application but also scrolls information when the screen saver is active. With PointCast, the user chooses news genres of interest as well as specific sources of news (CNN, Time, Reuters, and several local newspapers). The Wall Street Journal offers an interactive edition (for a fee) that lets its subscribers select stories to be packaged based on general news categories and specific categories of business news. The service also flags stories that mention companies held in a users stock portfolio and provides a daily accounting on how the user's investments performed. ⁽⁹⁴⁾

On the one hand, readers gain control over information delivery decision making--on the other, readers become more and more isolated and less a part of the world around them. ⁽⁹⁵⁾ Randall Bezanson wrote: "Editorial judgment is in jeopardy because it is increasingly made the product of market based choices rather than specific, independent and professional decisions about the importance and accuracy of current information on politics and political economy."⁽⁹⁶⁾ The social risk of the "Daily Me" is that when people self-impose blinders when they receive the news, they will miss important information because it didn't fit within their profiles. ⁽⁹⁷⁾

However, the "Daily Me" has gained momentum partially out of a rebellion against editorial judgment. ⁽⁹⁸⁾ To J. D. Lasica, personalized Internet news is more efficient and more rewarding to the reader: "I believe users want not only a richer, deeper news experience but also a seamless, integrated Web experience that gives them a fair amount of control over news delivery and consumption. Tell me the day's top stories on your front page, but let me add my personalized content and bookmarks. Let me compare your papers' movie reviews against other film critic' reviews. Let me configure your site's front page to include the columnists, reporters, features, puzzles and comics I like, instead of forcing me to scout them out in a dozen different places." ⁽⁹⁹⁾ Readers may think of the "Daily Me" as a truly democratic news service; news editors might call it anarchy. ⁽¹⁰⁰⁾

The traditional notions of editorial judgment run contrary to the new media's market scheme. The information people want and that which they need are seldom divergent. The question of the press is whether society can be trusted not only to value information, but also seek out and receive the information is needs, but does not necessarily want?⁽¹⁰¹⁾

Determining exactly what media constitutes the "press" has grown increasingly difficult in the face of new and evolving technology. The original press, printing text on paper, has given way to new forms of electronic communication: telegraph, wireless, radio, television, and now online services and the Internet.⁽¹⁰²⁾ While the First Amendment bars open the door to allow the free flow of information, it also bars open the door so that anyone is able to provide that information. To this end, the Court is clear; information provided to society by the traditional press is no more or less valuable than the information provided by the most irresponsible of online garage journalists.

The established news media, venturing into the Internet realm, have their names and reputations to defend--traits that set them apart from the new breed of online news providers struggling for recognition. ⁽¹⁰³⁾ The feeling is that an established news brand name, such as CNN or The New York Times would be an effective method of distinguishing serious, credible journalism from the new breed of garage journalists playing fast and loose. ⁽¹⁰⁴⁾ The traditional news media outlets feels that it can survive the online journalism onslaught by voraciously protecting their brand names--"making every effort to draw distinctions between their brand of journalism and the questionable style of reporting practiced in some quarters of cyberspace."⁽¹⁰⁵⁾

However, the Fist Amendment draws no such distinction between the traditional press and other forms of speech. Treating online news services as the equivalent of the traditional, institutional press is consistent with judicial opinions that extend freedom of the press to any organization engaged in the process of disseminating information relating to the government, politics, and other socially important issues to the public.⁽¹⁰⁶⁾ However, there has been disagreement within the Supreme Court and among scholars whether the news media is granted a preferred status under the First Amendment. ⁽¹⁰⁷⁾ Justice Stewart asserted that the press should be granted a preferred status under the Constitution over other speakers: ⁽¹⁰⁸⁾

This position is supported by the fact that the Supreme Court does provide the institutional press certain First Amendment rights and privileges not available to other speakers. The news media is the recipient of several special privileges as a result of its Constitutional status. ⁽¹¹⁰⁾ For example, the Freedom of Information Act⁽¹¹¹⁾ makes government records information available to the public for the cost of searching and copying, but waives this cost for the press.⁽¹¹²⁾

However, the judiciary has never been comfortable distinguishing among institutions when it comes to free speech doctrine.⁽¹¹³⁾ The Supreme Court has held the belief that First Amendment press freedom should extend to entities beyond the institutional press, declining to expand the rights if the institutional press beyond those enjoyed by the general public. Chief Justice Burger wrote in First National Bank of Boston v. Bellotti:⁽¹¹⁴⁾

Thus, any individual, business, or organization acting in the role of the press would qualify as the press. ⁽¹¹⁶⁾ Under this theory, Internet services disseminating socially relevant news and information would be considered to be a part of the institutional press, no matter who is doing the reporting, whose logo is across the top of the web page, or where the Internet site is being managed from.

Likewise, there is no distinction to exclude online journalists from claiming to be journalists. However, there is a movement from within to do just that: some journalists are beginning to think it necessary to actually define what a journalist is (or isn't)--something traditional journalists can use to laud their own credibility and responsibility and to separate themselves from the new breed of journalists crossing the line of responsible and ethical reporting.⁽¹¹⁷⁾

Movements within the journalism fraternity for setting professional requirements for reporters have been met with strong, sometimes rancorous, internal resistance.⁽¹¹⁸⁾ The strong criticism of any attempt to define who qualifies as a journalist is exclusionary and elitist. ⁽¹¹⁹⁾ Journalists from all levels of the industry are resistant to any standard setting--they view themselves and their profession (rightly or wrongly) as highly independent and ethical, not needing any internal or external regulation. ⁽¹²⁰⁾

For all of the talk about professional journalism, the traditional meaning of "professional" has traditionally applied only to a select few-- for example physicians, attorneys, and accountants. A "profession" is identified by four traits: 1) substantial formal training, usually at a college or university; 2) the provision of services, the quality of which a layperson cannot adequately evaluate; 3) the subordination of self-interest to the public good; and 4) a self regulatory body organized to assure the public that the members of the profession are competent, do not violate trust, and overcome self-interest. ⁽¹²¹⁾ David Logan noted that journalism lack three, if not all four of the characteristics of a profession:

Yet some of those in the journalism institution--reporters, editors, publishers, owners, and academics--see the infusion of the Internet into the news industry as a danger to the traditional role the press has played in society.⁽¹²⁸⁾ The "I know one when I see one" definition of a journalist--judging people by the subject matter they choose to cover and the nature in which they cover it--is ineffective when the whole press industry suffers for the ethical misdeeds of one newspaper of online news site. ⁽¹²⁹⁾ There is a movement now for journalists to reevaluate their standards and practices to clarify what sets the journalism profession apart from other informative endeavors. ⁽¹³⁰⁾

However, as far as the First Amendment is concerned, "journalist" is a distinction open to anyone who disseminates information. The courts have provided a very expansive definition of "journalist" in defining who is entitled to press privileges. In Titan Sports v. TBS,⁽¹³¹⁾ a federal court of appeals held that to qualifying as a journalist is more about a state of mind than a state of being. A journalist, the court held, is anyone engaged in a process traditionally associated with gathering information with the intent of disseminating the information to the general public, even if that person is not a member of the traditional press.⁽¹³²⁾

The purpose of a journalist's privilege is not to solely protect member of the print or broadcast news media, but to protect the activity of news reporting.⁽¹³³⁾ In the end, status as a journalist lies with the functions of newsgathering, not the qualifications or employment of the newsgatherer. This definition of journalist emphasizes the intent behind the newsgathering process and not the mode of dissemination.⁽¹³⁴⁾

The Supreme Court has also warned of the exclusionary dangers of deciding exactly who is a journalist. "[S]ooner or later, it will become necessary to define those categories of newsmen who qualify for the privilege--a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer just as much as the large metropolitan publisher."⁽¹³⁵⁾

Similarly, the choice of publishing online makes little difference. The Supreme Court has not limited its application of press freedom to only the facets of the traditional press--newspapers, periodicals, and broadcasters--but all media that contribute to the free flow of information. In Branzburg v. Hayes,⁽¹³⁶⁾ Justice White wrote "[I]t makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."⁽¹³⁷⁾

Any attempt on the part of the traditional press to separate itself from its less reputable brethren is exacerbated by the fact that there is no overt legal requirement for the press to act responsibly. While the courts have on occasion encouraged journalists to report their stories responsibly, fairly, and accurately, ⁽¹³⁸⁾ there is no overt requirement to do so. ⁽¹³⁹⁾ The First Amendment fails provide any guidance in determining what the news media's responsibilities are to society.⁽¹⁴⁰⁾ Chief Justice Burger observed that there is no Constitutional requirement that the press act responsibly: "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."⁽¹⁴¹⁾

Irresponsible journalism is afforded the same First Amendment protection as the most serious and accurate news story ⁽¹⁴²⁾ on the basis that censorship of even the most egregiously irresponsible and unethical journalism is against the interests of promoting an informed electorate and public discourse.⁽¹⁴³⁾ The practical effect of the majority of the Supreme Court's First Amendment jurisprudence is, not only to allow, but also to encourage bad journalistic practices. ⁽¹⁴⁴⁾

However, the press society needs must maintain an air of seriousness, accountability, and credibility--reporting on serious, relevant issues in an accurate manner.⁽¹⁴⁵⁾ To that end, the Supreme Court has provided the news media some encouragement for truthful, responsible, and ethical reporting. ⁽¹⁴⁶⁾ For example, the Court protects journalists when they report accurately. This is reflected in its decisions requiring a plaintiff to prove fault as to falsity and permitting truth as a defense;⁽¹⁴⁷⁾ and by holding that by printing retractions to correct errors made in a story, a libel plaintiff cannot use the retraction as evidence of reckless disregard of the truth.⁽¹⁴⁸⁾ The Court also encourages reporting on importance issues of public interest, ⁽¹⁴⁹⁾ providing the greatest protections from libel suits where the news media has reported on government officials and activities and other issues of public concern.⁽¹⁵⁰⁾

Despite the Court's encouragement for journalists to report truthfully and to address matters of public concern, the news media has found that it is safer to do otherwise. ⁽¹⁵¹⁾ The reason is, perhaps, that the Court has also set forth standards that encourage sensationalism and frivolous journalism. ⁽¹⁵²⁾ Philip Judy notes:

In the end, the First Amendment effectively creates a journalism free-for-all. As Judge Learned Hand said: "The First Amendment . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."⁽¹⁵⁴⁾

The Hutchins Commission's question of whether "the freedom of the press in danger?"⁽¹⁵⁵⁾ is a relevant today as it was fifty years ago. And now, as it was back then, the answer is a resounding "yes." Today, the Internet has usurped the power of the traditional media--lowering barriers to publishing and reporting and well as threatening the editorial function of the press.

As journalism boldly (blindly) marches into Cyberspace, critical legal and ethical issues are being raised that send tremors to the core of the institutional press. ⁽¹⁵⁶⁾ The press must realize that the Internet has already irrevocably changed journalism and that it will continue to recast the way society transfers information for years to come. These changes cannot be stopped. The press must reevaluate how it uses technology, learn how to use the new medium effectively, and become a guardian of the integrity and value of the information available online.

Most importantly, journalists must perform their press duties, at all levels and in all media, in a manner that fosters public trust. Journalism has always been dependent on the trust of the society it serves--a press that is distrusted by the public cannot effectively fulfill its social duty. ⁽¹⁵⁷⁾ Today, that level of trust is waning fast. But the causes of the public's declining trust of the news media is not simply rooted in online journalism, but is an industry wide problem. ⁽¹⁵⁸⁾

Bob Giles, outgoing president of the American Society of Newspaper Editors, summed up the public's attitude and perception of the press: "To many American citizens, the mass media has become the massive media--intrusive, sensational, uncaring, and flawed by bias and inaccuracy. To many Americans we lack introspection, discipline, restraint, and a capacity for self-scrutiny."⁽¹⁵⁹⁾ Public attitude toward the news media has declined so much that the notion of "objective journalism" is roundly considered to be an oxymoron.⁽¹⁶⁰⁾ As the content of news stores becomes questioned more and more on grounds of bias or fairness, the only thing journalists may have left to sell to the public is their reputation. ⁽¹⁶¹⁾

In order to end the downward slide of public opinion toward the news media and to reinforce reporter's ability to disseminate information vital to a democratic society, self-regulation of the news industry--with a representative slice of all news media, from the traditional industry giants to the new breed to "garage journalists''--is the logical next step for journalism.⁽¹⁶²⁾ It is time for the entire journalism institution to engage in a period of reflection and debate to clarify the common values and ethical standards all forms of journalism hold. ⁽¹⁶³⁾

Like the Hutchins Commission's recommendation fifty years ago,⁽¹⁶⁴⁾ the press needs to recommit itself to established standards of ethics, accountability, and responsibility, and mandate a new and meaningful code of ethics and responsibility for the new medium.⁽¹⁶⁵⁾ Several journalism organizations, like the Society of Professional Journalists, ⁽¹⁶⁶⁾ have promulgated a code of ethics that hold the journalistic profession to the high standards necessary to fulfill its democratic function.⁽¹⁶⁷⁾ In journalism, good ethics means good business. ⁽¹⁶⁸⁾

The Commission also recommended "the establishment of a new and independent agency to appraise and report annually upon the performance of the press. ⁽¹⁶⁹⁾ The task of grading the news media need be, by necessity, independent and private and not done directly or indirectly by the judiciary of the government.

[We] cannot turn to government as the representative of the people as a whole, and we would not do so if we could. Yet it seems to us clear that some agency which reflects the ambitions of the American people for its press should exist for the purpose of comparing the accomplishments of the press with the aspirations which the people have for it. ⁽¹⁷⁰⁾

The proposal to establishment of an independent commission to study and appraise the role of the press in this democratic society is as, if not more, relevant today as it was back then. Such an agency would most likely be a nonprofit corporation to appraise press performance and encourage new and diverse journalistic endeavors, as Lee Bollinger explained:

The press needs to be more accountable for its deeds and introspective on its social duties. The First Amendment makes it clear that any regulation of the news media must be self-imposed, ⁽¹⁷²⁾ therefore, any formal accountability must come from within. However, a call for an independent commission is not a call to establish a policing, accrediting, or an exclusionary body.

Rather, an independent press commission should be primarily devoted fostering a grassroots efforts that includes all levels of journalists from all media to face the new technological danger and opportunity before the press. The commission should address how the core principles and functions of journalism will develop in the changing world. Most important, the commission should develop a vision of how the new press will meet the goals of a free press--fostering an informed society and remaining vigilant over those that wield social power--and enlist the public's help in meeting those goals.

The ultimate goal of a press commission should not primarily rest on diagnosing the new market and technological problems of journalism. Rather, the goal should be on clarifying the press's duty to society and the First Amendment, creating initiatives to help meet that social duty, and identifying and celebrating press organizations big and small providing good journalism to the public.

The Hutchins Commission stated that a socially responsible press should provide: first, a truthful, comprehensive, and intelligent account of the day's events in a context which gives them meaning; second, a forum for the exchange of comment and criticism; third, a means of projecting the positions and attitudes of the groups in the society to one another; fourth, a method of presenting and clarifying the goals and values of the society; and, fifth, a way of reaching every member of the society by the currents of information, thought, and feeling which the press supplies. ⁽¹⁷³⁾

While changes in journalism wrought by the Internet may at times be contrary to this socially responsible vision of the press, online journalism should not bear the full brunt if the press fails to meet these goals now or in the future. Internet positioned just as well to meet society's needs as described by the commission. Internet news services are able to meet these needs as effectively as their print and broadcasting counterparts. Reporting on issues in "a truthful, comprehensive, and intelligent" manner is dependent on the competence, training and experience of the journalist, so the means by which the information is disseminated is irrelevant. Online services can provide a forum for "public discussion" in a manner superior to that of the institutional press through instantaneous responses to the reporters and editors through e-mail, and, more importantly, through actual, real-time "public discussion" in online chat rooms. The remaining three goals are achieved online because of the medium's potential for a greater variety of news and information sources and viewpoints than ever before realized in society. ⁽¹⁷⁴⁾

Instead of embracing the new technology and working together, traditional and online media have distanced themselves from each other--one group trying to exclude, the other trying to out do. Both sides need realize that the Internet is the future of the press and that the future of the press depends on ethical and responsible journalism. What is needed is an engaging discussion from all iterations journalism on how the future of the press will take shape. Because of the amazing potential of the Internet, the press could be more effective than ever. The only thing standing in the way of the press is the press.