A background on the theory of press passes and the public space

Over the last few month and a half (it feels like a year by this point), I’ve been approached by a number of people concerning the concept of citizen/independent journalists and press passes. A large part of it is undoubtedly the fact that I actually produce press passes for independent journalists (shameless plug here for more information) and also because I’m a vocal advocate for freedom of the Press on Twitter.

Of course, obligatory disclaimer that I am not a lawyer, and I’m not dispensing legal advice. That said, what I am saying I’ve gleaned from court documents and informal discussions in groups that have had unnamed lawyers, so take what I say with a grain of salt, while also realizing that if I’m proven wrong about something, I’ll adjust my views accordingly.

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One of the first things that frequently comes up is that livestreamers and independent journalists ‘aren’t real press’. And this, as well as other points, I touched on in a previous post, “A background on the citizen Press, and the Portland Police Bureau”, available here. The immediate counter that I have is that, true, we’re not ‘traditional Press’, which would be print media like the Portland Mercury, Willamette Weekly and the Oregonian, or broadcast media like KATU, KOIN, and OPB. However, when the country was first founded, the First Amendment guaranteed that Congress wouldn’t make laws restricting the freedom of the press. The Founding Fathers knew the risk of news only being disseminated by state sanctioned media outlets. And we can see that risk today in authoritarian leaning countries like Russia and North Korea.

A number of court cases have build on and confirmed this since, such as Associated Press v. United States (1945) when Justice Hugo Black wrote “The First Amendment … rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public”.

In 2014, a case heard in Portland itself, Obsidian Finance Group, LLC v. Cox stated “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings or tried to get both sides of a story.”  This was a case of a blogger writing allegedly defamatory statements about a finance group, but the concept still remains.

Even this year, from the Portland Police themselves, they confirmed that they consider such independent people journalists, stating in a press release: “With the advent of livestreaming and social media, there are many more independent journalists in the field, in additional to traditional newspaper and TV reporters.”

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The next most common complaint/criticism is that press passes that I or others make ‘aren’t real’. And in fairness, to a certain extent, they are right. According to Collins’ Dictionary, a press pass is: “a pass issued to accredited journalists giving them free access to certain events, venues, etc”. In other words, it’s a pass given to gain access to areas that members of the public may not be able to access. The example that I usually refer to is press passes for White House Correspondents. Those passes are actually managed through the Secret Service, and people approved by them and bearing the pass can get access to parts of the White House and access to meetings that you and I would never get to see.

But because our work is in the public space, there is no restrictions on where we can be (in line with regular laws like no going on private property or areas closed to the public), and as such, there normally is no need for a press pass to work in the public. They do still serve a purpose though. A press pass can be a quick indication that someone that’s photographing is doing so in a journalistic endeavor, as opposed to covert surveillance or creepy type activities.

And it seems that in regards to protests, as well as other public forum events (think city hall meetings) they may have new uses.

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What is involved in a press pass would probably be a good follow up question at this point. Since obviously there is no need for one in a public space, anything that goes on one is just icing on the proverbial cake. The NPAA makes a very good documentation case for their recommendations however: “Stating “Press” or “Media” on the ID, along with your name, photo, company name (if you have one) may assist you in identifying yourself but will not necessarily provide any additional privilege or access beyond what is available to the general public.”

I’ve taken this a half step further when I make passes. I argue since they’re not legal ID, and being transgender myself and having had the embarrassment of being forced to use identification that did not match who I was, I consistently tell people to give me their preferred name, and some have added pronouns as well. Also, company names can be a good pairing with livestream channel names (such as the fact that Raindrop Works is, at this time, a single person operation)

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And finally, as I mentioned before, press passes may well have new uses in this new age of civic engagement. When the Federal Government opposed to the TRO protecting press last month, the ACLU made what, to me, is a compelling argument in their response (page 17):“But this misses the point: Journalists and legal observers are engaged in different conduct than protesters, and so their claims are evaluated under different standards. Protesters seek a right to speak and assemble. Plaintiffs, however, seek a right of access—a right to “observe government activities.””

Simply put, while citizens assemble to protest to petition for redress of grievances, either in a protest, or attending a city council meeting, press are there as observers. To document. And as we’ve had in multiple restraining orders in the last five weeks, wearing a press pass is one of the primary ‘indica’ of being a member of the Press. Press passes seem to be so ubiquitous in current events that one night I was reporting on the ground, even though my gear was clearly marked press, I was denied access because I (ironically because I was focused on getting other people passes) I forgot my pass. I’ve seen reports of many other reporters on the ground who have police look at the press badge on their neck and move on.

 

So, in the long run, since press passes are generally easy to come by, with low one time costs (especially as long as programs like what I’m doing remain funded, which is entirely donation based), the benefits of having a press pass, while they shouldn’t matter, seem to be worthwhile.