access-denied

Here’s some good recent news for free-speech advocates: A federal court recently ruled that bloggers, online journalists and the public at large enjoy the same protections as legacy news outlets do when facing defamation lawsuits. Now for some bad news: Some of those legacy news outlets are colluding with politicians to try to protect an artificial information monopoly, one that conveniently protects media industry dinosaurs and punishes new media upstarts.

The latest example of this larger trend comes from Colorado, but it is merely one chapter in a larger story of government granting private companies monopoly control over public information. That story most famously includes government efforts to stop activist Aaron Swartz from ending the corporate hammerlock on court records, taxpayer-funded research and other public records.

In the Colorado iteration of this story, the details are different, but it is the same basic tale. As the new state legislative session gets underway here, the Colorado Capitol Press Association, which is run by legacy media outlets, is blocking journalists from the Colorado Independent from accessing the floor of the Colorado House and Senate. This is a privilege afforded every credentialed journalist. Yet, despite the fact that the Independent is run by a Pulitzer nominee and staffed by well-known professional reporters, the Press Association has for years been leveraging the credentialing power granted to it by state legislators to deny credentials to the web-based Independent. Worse, for years it has kept secret much of its decision making about granting access to the Capitol, and it has done so under the aegis of Colorado’s state government.

The results are similar to those in the Swartz episodes, just with different institutions and elites benefiting from the system. In Swartz’s case, information-sector companies were able to preserve much of their profitable monopoly on public records, thanks to government intervention (read: prosecution). In the Colorado case, the establishment media corporations that run the Capitol Press Association use their government-enforced rule-making power to monopolize access to the inherently public information that comes from the floor of the state House and Senate.

Unfortunately, as the watchdog group Free Press shows, what’s happening in Colorado is not an isolated incident.  I learned that through personal experience in 2007 when I was reporting my second book, “The Uprising.” Back then, the U.S. House and Senate press galleries, which are controlled by establishment media organizations, denied me credentials when I was trying to report the congressional part of my book. Luckily, I found a way around that blockade (which was subsequently replicated by others in my position).

But the message was as clear then as it is now in Colorado and elsewhere: For all the protections they enjoy under the First Amendment, many legacy media organizations try to employ government power to block access to First Amendment rights — in this case, the right to basic press freedom.

Promoting the “View from Nowhere,” when it is anything but

What’s fascinating and galling is the rationale typically cited as justification for this kind of anti-First-Amendment thuggery. As the Colorado Freedom of Information Coalition reports:

The reason for the denial has to do with The Independent’s funding sources and whether it is truly an independent news organization and not an arm of a political operation. The rules of the Colorado Capitol Press Association…specifically bar applicants that engage “in any lobbying or advocacy, advertising, publicity or promotion work for any individual, political party or movement, corporation, organization, or agency of the U.S. or Colorado government…”

“The reason we’re allowed on the floor is that we’re supposed to be the one group here that is not advocating,” said Joe Hanel, a Durango Herald reporter and member of the Capitol Press Association’s Standing Committee on Correspondents. “We’re supposed to be disinterested third parties.”

Hanel said The Independent, then known as Colorado Confidential, claimed not to be associated with any political apparatus when it first applied for – and was denied – floor credentials in 2008. “We came to learn a couple of years later that our suspicions were correct,” he said. The online publication received much of its funding from foundations connected to Democratic Party backers Tim Gill and Pat Stryker, and the Washington, D.C.-based organization managing the newspaper even shared office space with another progressive organization.

The “disinterested third parties” rationale stems from what New York University professor Jay Rosen calls the professional news industry’s desire to pretend it has a “view from nowhere.” That concept is an attempt by reporters to preen as higher powers supposedly worthy of special privileges. The idea behind the self-serving pretense is that journalists and news organizations are allegedly more objective than the rest of us in the great unwashed rabble.

Of course, as the New York Times public editor Margaret Sullivan noted in her column this weekend, “No writer comes to his or her work as a blank slate.” But if you somehow set aside that truism and set aside aside Rosen’s incisive critique of this “view from nowhere” illusion, the justification from the Colorado Capitol Press Association and all the other press gatekeepers may sound vaguely defensible when it comes specifically to credentialing.

That is, until you scrutinize the notion of “disinterested” and how standards are being applied. Once you do that, you realize that if financial connections to political ideology, party politics and activism was truly a disqualifier for press credentials, then many major establishment newspapers would never be credentialed.

Take, for instance, the Pueblo Chieftain. That newspaper’s top executives  engaged in aggressive political activism during recent recall elections in Colorado. Similarly, as I documented in a Harper’s magazine series, longtime Denver Post owner/chairman Dean Singleton is a well-known Republican Party activist who has not only personally involved himself in electoral politics, but who has also notoriously used his paper to publicly advocate for his preferred candidates and ideological causes.

In both cases, the legacy media outlets in question are able to keep the credentials and access that are simultaneously denied to the Independent. Somehow, we are expected to believe that the political activism of the Independent’s backers are disqualifying factors for press access. Yet, at the same time, we are also expected to believe the aggressive political activism of Singleton — for years one of Colorado’s most powerful political actors — should not subject the largest paper in the state to the same credentialing barriers.

This same double standard defined my book-reporting experience in D.C. The congressional press gallery credentialed conservative ideologues like Fred Barnes, but cited my previous work for progressive causes as reason to deem me an “activist” and thus deny me credentials (to his credit, Barnes publicly sided with me, saying the gallery’s attempt to deny me access to the Capitol was inappropriate). Meanwhile, whether in state capitols or the U.S. Capitol, Fox News is regularly given press credentials despite its parent company being a 7-figure financial sponsor of the Republican Party.

A move to protect profitable turf and prevent disruptions

You can certainly speculate that one motive behind this double standard is ideology — more specifically, ideological hostility towards progressives. After all, many of the highest profile efforts to block access have been aimed at those accused of harboring left-leaning views, and those efforts are spearheaded by establishment news outlets that tend to have conservative owners.

Then again, this is likely as much a simple business decision as anything else. Think about it: The news business right now is fracturing. More outlets like the Independent are popping up to disrupt the old news ecosystem. New media organizations are experimenting with different funding models. Not surprisingly, some of the old dinosaurs are reacting not by innovating or competing on an equal playing field, but instead by trying to turn public spaces into their exclusive profit-creating turf.

Creating and preserving that exclusivity, in fact, is a key part of those dinosaurs’ desperate attempts to survive. Exclusivity can generate scoops, which generates page views and subscriptions, which generates revenues. And so legacy outlets are willing to use the most ugly tools at their disposal to limit access and manufacture that exclusivity — even tools that make a mockery of the very First Amendment that enshrines the freedom of the press.

If these credentialing episodes were matters of access to private spaces, they might all be merely gross and unfair, but not necessarily legal issues. But because they are about access to government buildings and public officials and because the restrictions are being enforced by the government itself, these have serious constitutional implications. Indeed, as the lawyer for the Independent says in a letter to legislative leaders, the denial of access is “in all likelihood an unconstitutional abridgment of the freedom of the press” by the state of Colorado.

The news industry’s blurring lines

The legacy media’s rejoinder to this, of course, is that we shouldn’t want to let political operatives, activists, lobbyists or anyone with a political point of view to roam free in state capitols or other government buildings – or, more precisely, we shouldn’t want to let them roam as free as professional journalists. That’s the insinuation in the Colorado Capitol Press Association’s response to the Colorado Independent, just like it was the congressional press galleries’ response to me 7 years ago. But there are two key problems with that line of logic.

First and foremost, why as a matter of policy should anyone be granted preferential access to an inherently public space? There are certainly compelling reasons behind a select few special preferences for journalists (the most important of those being reporter’s privilege that aims to protect journalists from being compelled to disclose the identity of sources). But why should anyone – journalist or otherwise – be granted special privileges for access to inherently public information?

You can hate lobbyists, loathe political operatives, detest activists and dislike news outlets which have a political slant. However, as long as they follow the rules of deportment (i.e. not shouting down legislators, etc.), what constitutional right does a government have to block them from being in a public space? Additionally, on principle, why shouldn’t they be allowed to be in the same places as journalists in a state capitol?

Why shouldn’t, for instance, an anti-fracking organizer, be permitted to be near the floor of Colorado’s state senate, when someone from Dean Singleton’s pro-fracking broadsheet is? More to the point, why shouldn’t a journalist from a potentially left-leaning journalism organization like the Independent be barred from being in the same space as a journalist from the right-leaning Pueblo Chieftain?

There’s no good answer, or at least none that respects basic democratic freedoms.

Additionally, we are living in a new era where the distinction between “journalist” and “activist” no longer has any real meaning. Is Fox News, owned by the GOP-sponsoring News Corp, a “news outlet” or an “activist” organization? Is the Washington Post a news organization or a stealth lobbying shop for Jeff Bezos’s political ideology and business dealings with the government? Is Time magazine’s Michael Grunwald an “activist” and not a “journalist” because he expressed his opinion in support of executing Wikileaks’ Julian Assange? Is the New York Times’ Andrew Ross Sorkin an “advocate” and not a business reporter because his journalism has been directly subsidized by Goldman Sachs and other financial firms? Is the Denver Post’s Lynn Bartles an “activist” and not a political reporter because her newspaper is virulently anti-labor, to the point of running a front-page editorial screed against basic union rights?

In every aforementioned case, the news outlets and reporters  in question (rightly!) haven’t been denied the basic journalism credentials that give them access to public spaces. That’s one obvious sign that journalist-activist lines have been blurred and old job titles rendered meaningless. Thus, it is absurd to selectively cite those alleged lines and official titles in any effort to deny access. It is akin to Meet the Press host David Gregory infamously attempting to push journalist Glenn Greenwald out of the journalism club (and, worse, deem him a criminal) simply because Greenwald acknowledges his own opinions in the course of reporting his groundbreaking stories. It is, in other words, boorish, inappropriate and unacceptable.

That’s especially the case when, as in Colorado and elsewhere, using such false distinctions to block access is endorsed — and enforced — by the government. In those situations, public power is being marshaled to protect protect private interests and manufacture a competition-crushing monopoly.

That may be great for the news dinosaurs who benefit from monopoly, but it is destructive to young media organizations, future media startups, and creativity-fostering competition. It is even worse for democracy.