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Who Counts as a Journalist?

As part of our ongoing investigation into how documentary filmmakers can protect themselves against deep-pocketed detractors, CMSI recently attended a panel on reporter's privilege, hosted by the Media Law Resource Center Institute and the American University Washington College of Law. Reporter's privilege protects journalists from being compelled to reveal confidential information. 

At the panel, Mark Bailen and James Romoser of BakerHostetler presented the history and key cases of reporter's privilege, beginning by emphasizing that reporter's privilege is "not a special privilege for the media but a bipartisan principle of democracy."

Bailen and Romoser also discussed the Federal shield law that has been continually proposed but never passed, largely due to concerns about abuse by so-called "pajama bloggers"–that is, anyone with an Internet connection and an opinion. 

These concerns are part of a larger debate about how to define a "journalist." According to Bailen, possible qualifications that have been raised include whether or not journalism is the person's primary occupation (and source of income), and whether the person's "primary intent [is] to investigate events and procure material to disseminate to public local or national news of public interest." 

Bailen added that some older definitions of journalists included a requirement that the person work at a traditional gatekeeping organization, but noted that dramatic changes in the media landscape have motivated a move towards more functional definitions. 

Our research at CMSI shows that the expansion of this definition is critical to the protection of independent filmmakers documenting controversial subjects. In 2013, a Federal judge blocked a New York City subpoena for unused footage from Ken Burns' "Central Park Five" by ruling that the filmmakers had acted as independent journalists.

As a result, part of our research focuses on how journalistic best practices may be applied to documentary film. If you know of any such resources or tools you think filmmakers might find useful, please get in touch with us.