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When Journalists Are Protected From Online Muzzling

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To the mainstream news business, social media are both an opportunity and an irritant. They enable reporters to learn more and learn it more quickly, and furnish them with spiffy new channels to people they wouldn't otherwise reach. New media accelerate the creation and spread of news, and enrich the news diet by welcoming nontraditional sources to step up and tell what they know.

But social media like Facebook, Twitter and its messaging brethren also are annoyances to legacy media. They fuel rivals, who routinely scoop the bigshots and undermine their authority over the news agenda. They beckon to journalists and compel news organizations -- eager for new markets -- to encourage their staffs to skirt institutional controls and freebase with styles of online expression that are sharper and more pungent than the bland, denatured language that news media have evolved to avoid giving offense needlessly.

Which is tolerable until the newly emancipated reporters rediscover the thrill of producing unexpurgated comment, and treat readers to what they really think. The result is a spate of incidents in which respected journalists end up reprimanded or fired for unguarded comments they posted -- a New York Times Tokyo correspondent deploring Toyota's press practices, a Washington Post editor grumbling about the deficit, a CNN Mideast bureau chief regretting the death of a Hezbollah leader.

The right of media bosses to shut up their employees hasn't been challenged as vigorously as you might expect. Aren't journalists presumed to have a special claim to expressive freedom, not just a basic human right but a professional responsibility? Since when are news organizations supposed to be muzzling journalists?

Surprisingly, punishing journalists for infelicitous Twitter or Facebook postings has drawn little protest. That's largely, I think, because newsroom ethics continues to be defined mainly by news bosses, and they're thought to be within their rights in banning activity that rattles their brands or bruises their institutional vanity -- even when it's also spicy and provocative and truthful.

Ironically, the one area where journalists do seem to have free-speech protections online is when they are posting about their own employers. Here, reporters seem to have actual legal safeguards to say what they like, safeguards they don't have when it comes to wider-ranging commentary.

Like many people, I long assumed the New Deal-era National Labor Relations Act had been rolled up and discarded, its protections for people who try to organize their workplaces largely meaningless. So I was grateful for a recent column by the Poynter Institute's Jeff Sonderman, titled "Why Your News Organization's Social Media Policy May Be Illegal."

It keys off an ongoing dispute, in itself hardly a momentous one. A reporter in Colorado Springs, CO, was suspended for linking, from his personal Facebook presence, to a Los Angeles Times article about the sale of Freedom Communications, the company that owns his newspaper. Barrett Tryon's post was vexing because the Times had reported that Freedom's new owners might be selling his paper. That hadn't been reported locally.

Tryon's boss told him to remove the post because it violated a policy that prohibits "posting disparaging or defamatory statements about the company" as well as "communications that might be misconstrued in a way that could damage the company's goodwill and business reputation..."

Now, Tryon wasn't doing any organizing. But the law that covers people who do is broad enough to shield an impressive range of expression: Over the past two years the National Labor Relations Board, which administers the law, has issued advisories that protect employee criticism of managements, comments about owners, accounts of internal discussions, even release of proprietary information -- alongside safeguards for talking about the bread-and-butter issues of pay and working conditions.

The protections aren't comprehensive, and the law the NLRB is enforcing is narrowly directed at enabling employees to discuss matters that might affect their inclination or ability to organize to negotiate collectively over workplace issues.

But this is still a remarkable area where it's not the media, but the people within the media, who are defined as having rights to free expression. True, it's troubling to think that news managements are otherwise empowered to keep many of the smartest and best informed observers of contemporary happenings from sharing their observations with the public they're supposed to be serving.

But these rulings may still have the unintended benefit of furthering the cause of media transparency, by enabling journalists to speak candidly and publicly about the ways in which their own organizations operate in defining news and creating our news agenda.