There's Nothing Special About Journalists

What is remarkable about the R v. National Post ruling is not the legal decision, but how the Supreme Court dismissed any special treatment for journalists.

If you’re a Canadian journalist, in the wake of the Supreme Court of Canada’s decision in R v. National Post, you may be tempted to quote Walt Kelly’s Pogo: we have met the enemy, and he is us. The decision is the latest salvo in a decade-long battle: the effort by traditional media outlets to preserve an aura of uniqueness, or at least a patina of distinctiveness, around the work done by reporters and columnists.

In legal terms, the National Post decision is not revolutionary or even terribly surprising – while it offers a definitive pronouncement on the contours of a journalist’s ability to keep sources confidential in the context of a criminal investigation, it mostly synthesizes pre-existing trends and confirms various suppositions. No absolute privilege exists that allows “journalists” as a class to keep sources confidential. Instead, courts will decide on a case-by-case basis whether, in the circumstances, any particular source should be kept confidential, weighed against other public interests such as the prosecution of criminal conduct.

What makes the decision remarkable is how authoritatively it addresses the question of whether journalists are entitled to any particular rights or treatment as a result of their status as paid employees of particular media organizations. Read in conjunction with the landmark defamation decision in Grant v. Torstar Corp., released in December 2009, it is difficult to escape the court’s view, one that many in the news media will find unsettling: there’s nothing particularly special about journalists.

While the Grant decision received virtually unanimous praise from media outlets, the response to the National Post decision has been much more circumspect – the irony lying in the fact that the Supreme Court expressly relied on the expansive vision of “freedom of the press” articulated in the former to limit the scope of journalists’ privilege in the latter.

Journalists (and others) often refer to journalism as a “profession” – but the Supreme Court aggressively batted down this assumption. No formal licensing process exists for journalists – anyone can hold themselves out as a journalist, and, unlike what might happen if an unlicensed individual purported to practise law or deliver medical care, there is nothing that can be done to prevent them from doing so. There is no organization or entity that purports or is able to govern and regulate journalists and sanction them if they fail to observe “professional” standards. In what must be a particularly stinging cut, the majority reasons demurred on the possibility of drawing a distinction between “publishing in a national newspaper” and “blogging, tweeting, [or] standing on a street corner and shouting the ‘news’ at passing pedestrians” – all are equally entitled to exercise the “freedom of the press” envisioned by Section 2 of the Charter of Rights and Freedoms.

It was that liberal conception of journalism that informed the court’s decision: if anyone can be a journalist, and everyone is entitled to exercise “freedom of the press,” then allowing all “journalists” to claim an unassailable privilege to keep sources confidential would, in the words of the court, “blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.”

As happened in the Grant decision, the Supreme Court has made it clear that privileges previously conceptualized as belonging only to a limited guild of “journalists” actually belong to everyone. It is no accident that when a new defence to defamation law was crafted, it started out as “public interest responsible journalism” in the words of the Ontario Court of Appeal, but was modified by the Supreme Court into “responsible communication on matters of public interest.” No need to use a qualifier like “journalism” – the new defence was available not just to “the press,” but also, brace yourself, bloggers.

Technology is the catalyst for this new stance. If anyone can be a "citizen journalist," the need for the "citizen" modifier becomes less obvious. The courts have been emphatic: "freedom of the press" is important – so important that it doesn't belong just to "the media," but to everyone. Such an approach is radically democratizing, and, as with most instances of radical democracy, radically destabilizing – at least for incumbent media outlets.