Here's the text under discussion, a definition of a representative of the news media in section (4)(A)(ii):
In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news- media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of ‘news’) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.
What does this mean, from the point of view of this news disseminator? Let's walk through the language, line by line...
1.In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.
IMHO, key concepts are:
"ANY person or entity" means even a robot, or electronic news aggregator, could qualify as a representative of the news media. In our age, machines might do a better job than people of notifying readers of stories. Less personal bias.
"...that gathers information of POTENTIAL interest to a SEGMENT of the public" means that the information does not have to have interest at the present time, only someday. Further, the audience need not be the entire world, only an interested sub-section. And the segment could be pretty small, I would think. If Bill Gates reads my blog's favorable review of some new blogging software, he might buy the company, as he did with PowerPoint. I'd argue a segment might be one person who could act on the information, after all...one can talk to another...and as we saw in the Helen Thomas YouTube case--millions.
"uses its editorial skills to turn the raw material into a distinct work" in my opinion would even include a clipping service, such as every government agency uses--because the selection of which items to include, and in which order to place them is the most basic of editorial skills, that is, knowing what to cut and what to publish, and arranging them in order of importance to catch the eye of the reader. For example, take a look at Reader's Digest or Vital Speeches or the Utne Reader. Even the US Postal Service Daily News Digest contains different articles from that of the US Department of Transportation. Indeed, articles are selected by different criteria, by different editors. So, the process of selection and arrangement for publication is all that is needed to turn something into a distinct work. This is also true in the fine arts, as with collage. It is what editors--as opposed to writers--do.
"...and distributes that work to an audience." Again, I would say an audience of one is an audience. You'd have to persuade me that there is any logic to any other requirement. Because, again, once one person knows--if, unlike the "Journolist" 400 they are not sworn to secrecy--the potential is there for everyone to know about it. As we found out, when one "Journolist" member leaked some emails about Matt Drudge written by David Weigel on the internet.
2. We'll skip the examples, because, as stated, they are "not all-inclusive." In fact, I'd say they are only the most obvious, and IMHO 20th Century rather than 21st Century. I'd say for example, that MATT DRUDGE is a news media entity, in that his website is a medium through which news is transmitted...often into the very newsrooms of those in the "not all-inclusive" list. Of course, so was BENJAMIN FRANKLIN. Which is pretty much what the next line means.
3. "...such alternative media shall be considered to be news-media entities." Indeed, the alternative media probably are better disseminators than the old-line media. Do you think you would have ever heard about Monica Lewinsky if it hadn't been for MATT DRUDGE?
4. The next line is close to my heart: "A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity." This means, in my case, that although I am not paid and they are not responsible for the material on the site, I in a sense work for Google--because Blogger (my host) is owned by Google. I expect publication through Google. Most of my hits come from Google searches. And I can demonstrate this, with Google Analytics.
5. "A publication contract would present a solid basis for such an expectation..."In fact, a publication contract means little. All this shows is that the authors of the clause have an unreasonable deference for publishers. Today, anyone can be a publisher over the internet, through print-on-demand, or by using companies such as xLibris.
In fact, a number of self-published works have become classics--even best-sellers. Here's a list, from SimonTeaKettle's Famous Authors, of notable self-published books:
Remembrance of things Past, by Marcel Proust
Ulysses, by James Joyce
The Adventures of Peter Rabbit, by Beatrix Potter
A Time to Kill, by John Grisham
The Wealthy Barber, by David Chilton
The Bridges of Madison County
What Color is Your Parachute
In Search of Excellence by Tom Peters
The Celestine Prophecy by James Redfield
The Elements of Style by William Strunk, Jr. (and his student E. B. White)
When I Am an Old Woman I Shall Wear Purple
Life’s Little Instruction Book
Robert’s Rules of Order
Deepak ChopraAnd books rejected by publishers:
Edgar Rice Burroughs
Edgar Allen Poe
Henry David Thoreau
William E.B. DuBois
Pearl S. Buck - The Good Earth - 14 timesI would add James Joyce's Dubliners to the list of books rejected by publishers...
Norman Mailer - The Naked and the Dead - 12 times
Patrick Dennis- Auntie Mame - 15 times
George Orwell - Animal Farm
Richard Bach - Jonathan Livingston Seagull - 20 times
Joseph Heller - Catch-22 - 22 times (!)
Mary Higgins Clark - first short story - 40 times
Alex Haley - before Roots - 200 rejections
Robert Persig - Zen and the Art of Motorcycle Maintenance - 121 times
John Grisham - A Time to Kill - 15 publishers and 30 agents (he ended up publishing it himself)
Chicken Soup for the Soul - 33 times
Dr. Seuss - 24 times
Louis L'Amour - 200 rejections
Jack London - 600 before his first story
John Creasy - 774 rejections before selling his first story. He went on to write 564 books, using fourteen names.
Jerzy Kosinski - 13 agents and 14 publishers rejected his best-selling novel when he submitted it under a different name, including Random House, which had originally published it.
Diary of Anne Frank
All a publication contract tells you is what someone has been paid. I wouldn't submit one, when I made a FOIA request for the book I'm currently writing, because it's like submitting your pay stub--too personally embarrassing and none of their business! I affirmed I had a contract, that should have been enough. Which is why the second clause is important: "...the Government may also consider the past publication record of the requester in making such a determination." IMHO, this is better than nothing--but what if it your FIRST book? Or, your FIRST documentary film? Why should established writers have a preference under law that unknowns, who have incentives to seek scoops with more vigor, don't?
As Frank Rich pointed out in the Sunday New York Times, it is outsiders who have consistently been able to deliver the most powerful news stories:
"Politico theorized that Hastings had pulled off his impertinent coup because he was a freelance journalist rather than a beat reporter, and so could risk “burning bridges by publishing many of McChrystal’s remarks.”
That sentence was edited out of the article — in a routine updating, said Politico — after the blogger Andrew Sullivan highlighted it as a devastating indictment of a Washington media elite too cozy with and protective of its sources to report the unvarnished news. In any event, Politico had the big picture right. It’s the Hastings-esque outsiders with no fear of burning bridges who have often uncovered the epochal stories missed by those with high-level access..."
Bottom Line: FOIA, as amended, expands the definition of the news media, but not far enough.