Ecuador reexamines repressive comm law, but would keep journalist licensing. Is that so bad?

The struggle between press and government in Ecuador is not new. Protestors
pictured above in 2011 supported a complaint to the Inter-American Human
Rights Commission over press freedom after Rafael Correa, president from
2007 to 2017, brought lawsuits seeking civil and criminal penalties, to the
tune of US$10 million and four years' imprisonment, against journalists
writing about corruption and against the publishing company and directors
of El Universo, a Guayaquil-based daily. More at the Knight Center for
Journalism in the Americas. Photo by Cancillería Ecuador (CC BY-SA 2.0).

A legislative commission in Ecuador is recommending freedom-friendly reform of the country's repressive 2013 communications law, Observacom reports.  But the commission looks to be holding on to one piece of the law: journalist licensing.  While Western human rights advocates regard journalist licensing as a plain infringement of the freedom of expression, the reality is more complicated. Even in the United States, the idea of journalist licensing has been floated as a possible remedy to our "fake news" problem.

Journalist licensing is just what it sounds like.  Some countries require that professional journalists meet certain educational and vocational training requirements, such as a university degree in journalism and periodic continuing education.  A newspaper might publish op-eds and occasional contributions from unlicensed persons.  But regular, bylined writers must be licensed.  A licensing authority oversees the membership and may sanction malpractice, such as fabricated reporting.

The typical Western reaction to this arrangement—my reaction when I first learned of it as an undergraduate journalist in 1990—is horror.  Quasi-public officials with the power to impose sanctions and the benefit of hindsight second-guess the judgment of reporters and editors over questions such as whether a story is appropriately balanced or even newsworthy?  Policing journalism like that is asking for trouble.  How can the Fourth Estate be a zealous watchdog when the watch-ee bites back?

The U.S. Society of Professional Journalists decided in the 1990s that journalistic ethics must be aspirational and non-definitive, rendering ethics guidelines that are fundamentally incompatible with legalistic rules.  Minimize harm, a sort of Hippocratic oath for journalists, became the overriding principle, espoused by academic and practitioner leaders, such as the Poynter Institute's Bob Steele (no relation).

Empowering an enforcement authority over journalism is bound to have a chilling effect on free expression, and worse, to invite control and abuse of media.  There is no doubt that that has happened; licensing has been weaponized infamously by leaders in countries such as Iran and the Philippines.  Media licensing and enforcement authorities are fairly identified by free expression NGOs, such as Observacom, Freedom House, and the Committee to Protect Journalists, as a sign of authoritarianism and a strike against freedom.

In 1985, upon an inquiry by Costa Rica—then the United States' democratic darling in Central America—the Inter-American Court of Human Rights (IACtHR)—then presided over by American judge Thomas Burguenthal, now a law professor emeritus—issued an advisory opinion concluding that journalist licensing is incompatible with the freedom of expression in the Inter-American Convention on Human Rights. (I wrote about this for my university honors thesis.  Go easy on me; I was 22.)

But step back from the problem for a moment and reconsider.  Journalism is important.  It might in fact be essential to democracy.  "[T]he press" is the only private-sector institution mentioned in the U.S. Constitution.  And especially in today's media-obsessed society, "the press" is powerful, shaping the public agenda in a way that it never has before.  Yet anyone can become a journalist, simply by saying so.  Prophylactic media privileges will protect this person from liability, or accountability, even upon publication of defamatory falsehoods, regardless of whether the person claimed journalistic credentials in good faith or published in the public interest.  To wield this power, or to abuse this power, there is no licensing, and there is no enforcement.

Meanwhile, in many American states, we license cosmetologists, interior designers, and real estate agents, and we sanction persons who would hold themselves out as having those competencies if they do not have licenses.  No disrespect to those occupations, but the republic will not fall upon their negligent practice.

Is there not some rational line to be found between licensing as a tool for authoritarian oppression, and licensing as a tool to bolster education and competence for informed democratic participation?

That question was not on my mind when I went to Costa Rica in 1992 to learn more about the colegio de periodistas, the journalism professional organization.  Rather, properly indoctrinated into the ideology of free speech absolutism, I sought only to understand how and why this anachronistic entity could persist—if as a voluntary organization since the IACtHR opinion—in evident juxtaposition with a famously liberal society.  In fact, I hoped to witness its death throes before it disappeared.

The colegio that I found was not what I expected.  Quite to the contrary, there was nothing remotely authoritarian about it.  And it was thriving.  I interviewed reporters, editors, lawyers, and people on the street, and the vast majority favored the colegio, heartily.  Indeed, its journalistic members were its strongest proponents.  They welcomed me as a fellow journalist and invited me to an evening gala with dinner and a speaker at the colegio's headquarters building in San José.  They celebrated their professional association.  When I asked about the incompatibility of journalist licensing with the freedom of expression, they frowned and shook their heads as if they simply did not understand.

The colegio in fact was more like a labor association than a lawyers' bar.  As an organization, the colegio advocated for better wages and employment terms for members, besides sponsoring professional peer dialog, continuing education, and social events.  Members helped and supported one another, professionally and personally.  They all had paid their dues—literally, and in terms of their university degrees and reporting experience—and they were happy to be part of the in crowd.  Colegio journalists were horrified at the idea of a journalistic free-for-all, the ill-informed masses practicing the reporter's craft at the public's risk, just as I had been horrified at the idea of licensing.  The Colegio de Periodistas de Costa Rica was not a public regulatory office, nor a lawyers' bar; it was more like a union and a lot like an academic fraternity.

An excellent 2010 report by journalism professor Steven Strasser, for the Center for International Media Assistance, a project of the National Endowment for Democracy, took a thorough and uncharacteristically evenhanded look at journalist licensing around the world.  While amply expounding the down side of licensing, Strasser wrote too about the up side.  He wrote about the labor angle that I discovered in Costa Rica, observing that publishers, as employers, might be as motivated by commercial self-interest as by idealism when they advocate for the incompatibility of licensing with human rights.

Strasser also observed that journalist licensing is a deliberate feature of sustainable development strategy.  Rwanda, for example, sought to use licensing as leverage to enhance the educational attainment of journalists, and thus indirectly to strengthen democracy with informed public participation.  "Fake news," after all, was in part responsible for the Rwandan genocide.  In Uganda, sensational and false reporting, perpetuating abhorrent stereotypes, has fueled brutal violence against the LGBTQ community.

That licensing might be an antidote to runaway sensationalism and "fake news" has not escaped notice by American legislators.   A Michigan legislator proposed voluntary journalist registration and a licensing board in a 2010 bill.  Membership, as a sort of service mark, would certify the writer as having a journalism or similar university degree, three years' experience, and "good moral character," Michigan Live reported.

Indiana Rep. Jim Lucas proposed journalist licensing in a 2017 bill, somewhat to mock licenses to carry firearms, according to the Indy Star.  Drawing a parallel between the First and Second Amendments, the Indiana bill would fingerprint journalists and exclude those with "felony or domestic battery convictions" from carrying a mighty pen.  Still, on the professionalism point, Lucas tweeted Trumpesquely, "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!"

Unlike colegio members in Latin America, journalists in the United States have rallied against any talk of licensing.  (See also this 2017 point-counterpoint in Canada.)  And Ecuador is hardly the poster child for licensing's up side.  After the 2013 communication law went into effect, the Correa administration wasted no time in going after editorial cartoonist Xavier "Bonil" Bonilla at the newspaper El Universo for criticizing heavy-handed search and seizure by police as politically motivated.  The "Superintendent of Information and Communication," an office created by the communication law, "accuse[d] Bonil of perverting the truth and promoting social unrest," reported the Knight Center for Journalism in the Americas (source of cartoon, inset, published Dec. 28, 2013).

I doubt that licensing will cure our "fake news" problem.  And I'm not much on licensing in general, more for the burden on economic freedom than the risk to political freedom.  We lawyers demonstrate very well how licensing is an addictive means to economic protectionism, ultimately working at cross-purposes with consumer protection.  Moreover, regarding journalism, licensing would seem to undermine the benefits of (momentarily notwithstanding the problems with) citizen journalism in the internet age.
 
At the same time, I don't think that the licensing of journalists merits a knee-jerk reaction of detestation.  What passes for journalism in America is transforming into something frightening, more akin to the yellow journalism of the 1890s than the Woodward-and-Bernstein reporting of the 1970s.  Was journalism's twentieth-century engagement with professionalism aberrational? a racy flirtation during a midlife crisis for democracy?

Maybe we need more journalists who went to journalism school.

Can somebody please check to see whether we still have any journalism schools?