Stanford Center for Internet and Society

The proposed federal shield law for journalists has recently had a surge in momentum, and nearly every news organization and First Amendment advocacy group is applauding. But I’m not. As a strong believer in the importance of investigative reporting, I am naturally sympathetic to the idea of a federal shield law for journalists. Anything that helps people hold the government and others in power accountable for their actions is a good thing in my book. So what is the problem?

The problem with giving legal privileges based on someone’s “status” as a journalist is that it simply doesn’t make sense in light of the communications environment we live in today. Thanks to the Internet, there is no rational way to differentiate journalists from non-journalists. And further, there is no good reason to try to do it.

Sometimes changes are so basic and world-changing that they can be difficult to recognize. Having just finished Losing the News by Alex S. Jones, I was reminded again just how difficult it seems to be for people in the news business to acknowledge the simple truth: the Internet has eliminated the need for mass media. Yes, professional journalism may still benefit society, but we no longer live in a world where citizens must necessarily depend on a select group of gatekeepers to funnel them information and news. This is the paradigm shift, and as long as it continues to go unrecognized, visions for the future of journalism will be fundamentally flawed.

Therefore, in the spirit of catharsis, in the simplest and most straightforward terms possible, I set forth four truths about the communications ecosystem created by the Internet.

If privacy and the ability to preserve your reputation are essential components to personal freedom, then Michael Jackson was imprisoned. As the media hysteria surrounding his death exemplified, Jackson’s life was a cautionary tale about the weight of relentless public scrutiny. Popular wisdom holds that his woes are the unfortunate but inevitable costs of fame.

No one likes lawyers. My dad likes to joke that it’s a shame how 99 percent of lawyers give the rest of us a bad name. Not only am I lawyer, but I am also trained as a journalist, which arguably ranks even lower on the list of ill-reputed professions in the U.S. So what happens when these two maligned professions go head to head?

In May, Free Press released a report titled Saving the News: Toward a National Journalism Strategy. The 48-page document is the most intelligent and comprehensive proposed solution to the crisis in journalism that I have seen, and I urge everyone to read it. The report begins by setting forth its highest priorities in devising a national journalism strategy, including protecting the First Amendment, promoting government accountability, producing quality news coverage, and encouraging innovation. With those principles in mind, the report outlines and critiques a host of proposed solutions, covering everything from micro-payments to a wholesale government bailout. Ultimately, Free Press proposes a multi-faceted approach to addressing the crisis, which blends expansive government funding for public media with legal and tax incentives to promote new ownership and alternative models.

I believe “The Wire” was one of the best television series’ ever made, so I was greatly disappointed to learn the substance of David Simon’s recent testimony to the Senate about the future of journalism. Not only did he self-righteously mock citizen journalists and deem bloggers and news aggregators “parasites,” he ended his presentation with the suggestion that Congress relax antitrust rules to allow newspapers to create an industry-wide, subscriber database. Sigh.

You know an industry is struggling when its establishment players start accusing everyone of stealing. It’s a familiar tale. Technology forces an industry to change, but rather than innovating and adapting, the powers that be lash out to protect the status quo at all costs. It’s a sign of desperation for a doomed business model, so it’s only fitting that Big Media embrace it now. And embrace it they have, threatening to sue everyone and anyone who “steals” their news, and advocating massive industry-wide collusion to ensure that their new “no free content” regime can survive.

There have been a host of apocalyptic warnings in the blogosphere about the First Circuit’s recent decision holding that truth is not an absolute defense to a defamation claim. One blogger dubbed it “the most dangerous libel decision in decades,” and nearly everyone predicts it could have serious implications for journalists. But instead of joining the chorus of First Amendment advocates decrying the decision, I propose we take a step back to calmly examine the appropriate level of First Amendment protection for truthful private information.

This week, Harvard’s Cyberlaw Clinic filed an amicus brief with the Illinois Appellate Court in support of hefty procedural safeguards to protect the anonymity of online speakers in defamation lawsuits. The brief was a collaborative effort of a number of organizations, including Berkman’s Citizen Media Law Project, Gannett Corporation, and the Reporters Committee for Freedom of the Press. While I agree with the fundamental premise that plaintiffs should have to do more than simply serve a subpoena to compel the defendants to reveal the identity of online speakers, in my view, the position staked out by the amicus coalition simply goes too far.

It’s fascinating to witness the public reaction as the newspaper industry implodes. Young people are largely indifferent while older generations seem to think a world without newspapers as we know them means journalism will cease to exist.