BY ANTHONY SANCHEZ Dateline: April 26, 2007
IMPORTANT RELATED MATERIAL: Joshua Wolf (born June 8, 1982) is an American video blogger, freelance journalist and filmmaker who was jailed by a Federal district court on August 1, 2006 for refusing to turn over a collection of videotapes he recorded during a July 2005 demonstration in San Francisco, California. Wolf, a video activist who reported on numerous protest and progressive events, videotaped an anti-G8 anarchist protest in San Francisco on July 8, 2005 in which the protesters wore masks to hide their identities. Later that same night, and over the next few days, Wolf posted edited clips of his video to a local activist news website, Bay Area Indymedia (Indybay)…Wolf’s videotape is the only known source material from the protest to have been sought by subpoena after refusal to turn it over. 
The US District Court empaneled a grand jury to determine whether arson charges should be brought against some of the protesters on the suspicion that they may have intended to damage a police car by firing a bottle rocket under it, even though the only official damage reported was to a tail light. The premise for Federal intervention in a case involving a city police car was that the car was funded in part by Federal dollars. Josh Wolf did not shoot any footage of the car incident. [CONTINUE DETAILS HERE]
In the old days, it was easy to recognize who was a journalist, one belonging to that class of elite individuals who could bring down a president with their powerful craft: simply look for the notebook and the press card stuck into the side of a fedora. But digital technology has turned everything upside down, and those days are long gone. That, and no one wears fedoras anymore.
Now, with a digital camcorder, a computer, and an Internet connection, anybody can be boat-rocker by capturing a Macaca moment or bringing attention to Don Imus’ racist broadcast on their blog. So the question must be asked: just who is a journalist, nowadays?
It is an important question in light of both the jailing of videoblogger Josh Wolf (now free after 226 days in jail) for refusing to comply with a subpoena for his unaired footage of a 2005 demonstration, and the ongoing debate over a federal shield law to create a journalistic privilege to protect the sources and methods of journalism from compelled disclosure. It is here that the definition of a journalist begins to matter: to whom would this journalistic privilege apply?
However, defining a journalist is no easy task, and many have qualms about the very prospect of inviting the government to define a journalist. To them, the act is a form of licensing, and therefore an affront to the First Amendment.
As Floyd Abrams, a legendary First Amendment lawyer who argued for a journalistic privilege in the Supreme Court case Branzburg v. Hayes, has said, “…merely determining the scope of the privilege (when would it apply?) and identifying who would receive it … [are] difficult matters at best.”
Indeed, defining a journalist is risky business. Any governmental definition of a journalist could either be too narrow and exclusionary, failing to account for changes and nuances (such a freelancer or bloggers), or too broad, with the unintended consequence of granting a blanket testimonial privilege to anyone who can claim to be a journalist.
For example, California’s shield law, which is codified in the state constitution and attempts to define a journalist, faces the problem of exclusion. A journalist is defined as “a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication.” It is these people, the law goes on to say, who “ shall not be adjudged in contempt…for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”
Whether a freelancer who writes while not connected to a news organization (like Josh Wolf) or an individual who produces a piece of journalism only once on his blog is a journalist is not entirely clear by the state of California’s definition. Is a blog considered a “periodical publication”?
When I asked Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, whether or not bloggers are journalists, he succinctly responded, “Yes. A blogger is a journalist if they are doing journalism.”
Bankston’s response is an interesting one as it shifts the focus from the question of who is a journalist, to the question of “what is journalism?” I asked Bankston if a good legal definition of journalism existed. He responded that a flexible definition came from a case in which the Ninth Circuit and Second Circuit Federal Courts of Appeals attempted to determine when to apply a First Amendment journalists’ privilege.
The courts determined that the journalists’ privilege applied when “the person seeking to invoke the privilege had ‘the intent to use material – sought, gathered or received – to disseminate information to the public and [that] such intent existed at the inception of the newsgathering process.’ If both conditions are satisfied, then the privilege may be invoked.”
Bankston argued that this definition “correctly recognizes that what the First Amendment protects here isn’t a person or a sector of the media but the act of journalism.” Furthermore, he said, the decision discriminates neither on the basis of whether the person doing journalism is a professional or amateur, nor on the basis of the medium used.
Bankston is on to something here. The First Amendment does not favor one class of individuals over another. If anybody can do journalism at any time, then the entire debate of protecting journalism has been mistakenly focused on the exclusionary, who part of journalism rather than the what part of journalism.
The constant advent of new technologies means that journalism is a rapidly changing field. The definition of a journalist, if codified under the federal shield Law, must be flexible enough to allow for these changes in the reporting business and be rooted in what is journalism.
So who is a journalist? A journalist is simply someone who does journalism — who gathers news and information for the purposes of dissemination to the public.
Anthony Sanchez is the director of the Center on Media for the Roosevelt Institution at Stanford. He is a senior in Communications and Creative Writing.