freedom of information – UAB Institute for Human Rights Blog

The Experiences of Journalists in an Era of Crisis (Part II)

by Andy Carr

newspapers. Source: Renzo Borgatti, Creative Commons

From a human rights perspective, one key factor behind recent trends in American media might best be framed in terms of labor rights. Beneath the turmoil and headlines, a collective organizing and unionization effort at leading magazines and papers has emerged in recent years, including at Vox, The New Yorker, the Los Angeles Times, and others. Especially in media, focus has turned to the rising tide of labor unions – organizations which are formed by workers in the same sector (e.g., among journalists and related professions) to bargain collectively. Collective bargaining allows unionized workers to negotiate with a stronger hand; the more workers are included, the more their non-participation or, in extremis, walkouts, and strikes will affect their employer(s). Bargaining leads to a union contract which binds all employees and their employer (if approved by a pre-set threshold required) to baseline pay rates and other working conditions. In modern contexts, union contract conditions include working hours, overtime policies, paid leave and holidays, sick pay and health insurance, promotion qualifications and timelines, as well as equity and inclusion-oriented provisions, such as minority recruitment programs and diverse hiring initiatives.

Journalist organizing movements follow in the footsteps of Depression-era unionizing efforts significantly set off by a call to action in the New York World-Telegram written by Heywood Broun, a famed columnist of the 1930s. The American Newspaper Guild subsequently exploded, and just “10 months after Broun’s first column, the Guild had 7,000 members, with 125 delegates from 70 papers” onboard. At the same time, as Steven Greenhouse explained in the Columbia Journalism Review last year, “many publishers [of the time] aggressively resisted unionization.” Famously, the Associated Press “fired a reporter, Morris Watson, for his pro-union activity,” leading to a lawsuit which reached the Supreme Court, Associated Press v. NLRB (1937). In that case, the Supreme Court “rejected the publishers’ arguments that their freedom of the press was being violated by federal laws” protecting unionization and collective bargaining, affirming the reach of the National Labor Relations Act of 1935 (NLRA).

The NLRA remains a significant part of America’s federal law on employment and labor rights, and since its inception it has sought two broad aims: first, “to restore the equality of bargaining power” among workers and employers and, second, to “resolve the problem of depressed wages,” a ubiquitous concern in 1930s America (see Southern California Edison Co. v. Public Utilities Commission, 140 Cal. App. 4th 1085, 1100 (2006)). More than 80 years after its founding, however, the underlying goals of the NLRA remain widely unfulfilled, with nationwide union membership dropping year-over-year since at least 1983, and America’s journalists, in particular, have faced daunting challenges. To put it bluntly, journalists’ ongoing efforts to organize have met an organized, systemic response.

Last May, Jones Day, one of the world’s largest law firms, held “a conference in its Manhattan office focused on labor and employment law in the news media industry,” an “invitation-only affair, bringing together Jones Day attorneys and media executives, in-house lawyers, and senior human resources personnel—in other words, anyone who might find themselves on the other side of a bargaining table from journalists trying to unionize.” Among the attendees were individuals from “The New York Times, The Washington Post, Slate, Univision, and Atlantic Media, among others,” and one of the “moderators leading the conference was Patricia Dunn, a longtime [Jones Day partner based in Washington, D.C.], and a former in-house counsel for the Post.” As CJR again summarized, Jones Day,

“with Dunn often at the helm, has in recent years become a go-to for media executives facing union drives. At a time when uncertain market forces have driven more and more newsrooms to organize, Jones Day has become notorious for aggressive anti-union tactics that journalists and union leaders say have helped downgrade media union contracts and carve employee benefits to the bone. Jones Day’s portfolio of media outlets includes, among many others, Slate, whose union members voted [in December 2018] to authorize a strike amid pushback from management on their demands.”

These outlets hardly cover the range of past and ongoing union-busting efforts: New York magazine, Vox, the Boston Globe all have been accused of assertive anti-union tactics in the past few years. (Among these cases, however, Vox’s unionizing efforts recently succeeded in the dramatic form: on Friday, June 7, Vox Media staffers secured an industry-defining union contract after a 29-hour marathon negotiation. The contract set minimum salaries at $56,000, included generous leave policies for parents regardless of gender and included initiatives designed to improve diversity in management, among other provisions.)

a room of journalists with laptops and cameras — Journalists. Source: UNClimateChange, Creative Commons

Even where writers and editors have had organizing success, their gains have proved temporary. As The New Yorker reported in November 2017, just one “week before [their] sites were shuttered, the staffs of DNAinfo and Gothamist had unionized with the Writers Guild of America, East,” one of two leading industry unions in America along with NewsGuild. DNAinfo and Gothamist comprised a network of locally oriented outlets in major cities, owned by billionaire Joe Ricketts, the founder of trillion-dollar “brokerage giant” TD Ameritrade and “a major right-wing donor who … has given millions of dollars to anti-labor politicians” across the United States. Former employees, speaking to The New Yorker, reported “that, in both coded and explicit ways, management had warned [staff] repeatedly in the months before they unionized that doing so would mean that the sites would cease to exist” – a seemingly clear instance of “threatening [unionizing] employees with closure,” in violation of federal law.

Subverting workers’ collective organizing or their free association more broadly both constitute problematic strategies under international law, as well. The International Labor Organization (ILO), for instance, has spoken unequivocally on the fundamental right of workers to coordinate collective action, including rights to “freedom of association” and “the right to collective bargaining,” per the following excerpts:

ILO Declaration on Fundamental Principles and Rights at Work (June 1998), Perambulatory Dedication:

“Whereas, in seeking to maintain the link between social progress and economic growth, the guarantee of fundamental principles and rights at work is of particular significance in that it enables the persons concerned, to claim freely and on the basis of equality of opportunity, their fair share of the wealth which they have helped to generate, and to achieve fully their human potential…”

ILO Fundamental Principles, operative clause (2) (emphasis added):

“Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation…”

The UN Human Rights Council in 2008 also weighed in on corporations’ responsibilities vis-à-vis human rights, to include fundamental principles of labor rights. Although currently non-binding, the Guiding Principles on Business and Human Rights framework describes “business enterprises as specialized organs of society performing specialized functions,” but which also are “required to comply with all applicable laws and to respect human rights” (emphasis added). The Guiding Principles emerged in response to concerns about the nexus of human rights and transnational businesses specifically, yet are framed in generalized terms. Thus, the ongoing anti-organizing efforts of managers and owners in American media may constitute violations of not just domestic labor laws, but also an emerging corpus of international legal standards that might become binding rules in coming years.

The foregoing issues merely scratch the surface. Strong-arm labor tactics often combine with the toxicity of online media culture generally and the lawsuit-begging misconduct of particular outlets. For example, a 2018 New York article on the culture at Vice Media cites a “senior manager [who] once joked that the company’s hiring strategy had a ’22 Rule’: ‘Hire 22-year-olds, pay them $22,000, and work them 22 hours a day.’” Vice, then, might provide a serviceable avatar for American media problems – a culture of toxicity, outright abuse, and constant uncertainty about reporters’ job security combined with increasingly “widely lauded” output, such as Vice’s work with HBO and a documentary which “offered one of the first looks inside the Islamic State,” from 2014. Vice, notably, has been embroiled in back-and-forth union negotiations since January 2018, prompting over “75 current and former writers for HBO” to sign a petition requesting Vice Media “sign a strong union contract.”

With the enduring stalemate over unionizing efforts at BuzzFeed News and another round of layoffs in recent weeks—including the total elimination of Ebony’s online team, allegedly without pay for work already done, earlier in June—a complex push and pull continues. Media organizing successes and setbacks like that above highlight the urgency of needed protections.

Reporting on Human Rights and the Humanity of Journalists

by Andy Carr

In human rights, journalists usually are seen as chroniclers: reporters on the front lines of a conflict zone letting the world know of events as they unfold. As such, they also may serve as agents of human rights, since their reporting provides advocacy groups and committed global human rights leaders with vital information. Tragically, though, journalists often become the targets of human rights abuses unto themselves. Until recently, little attention had been paid systematically to this last point but shifting global events have underscored numerous threats to members of the media. In an era of politicians condemning the media writ large as “enemies of the people,” deteriorating discourse, extreme politicization of what constitutes “news,” and the polarization of both governing elites and societies at large have made the humanity and the human rights roles of journalists both more important and, troublingly, threatened.

On October 2, 2018, Washington Post contributor and journalist Jamal Khashoggi disappeared after heading into the Saudi consulate in Istanbul. Shortly thereafter, Turkish officials leaked that Khashoggi had been murdered, with grisly details suggesting he had been cruelly tortured before his killing – a “brutal silencing of a prominent journalist,” and an event which “was met with outrage from journalists” and politicians around the world.

One notable exception to the global outcry, however, was President Donald Trump. While the President’s “business dealings with Saudi Arabia” leave him “personally conflicted,” regardless of his conflicts, Joel Simon flatly stated that the President has utterly “failed to articulate a coherent response” to Khashoggi’s murder whatsoever. The non-response is galling, in particular because of Khashoggi’s identity and profession. As Kyle Pope wrote for the Columbia Journalism Review:

The Khashoggi case has brought Trump unusual global blowback, though, for a distinction that the president plainly does not see. We care about the Khashoggi case, at least in part, because Khashoggi was a journalist.

Yes, his killing was horrific and barbaric and yes, it came at the hands of an American ally, which then lied about it. But the world has also been moved to respond because Khashoggi, as a journalist, represented something bigger than the man himself, something that leaders around the civilized world have come to value. He was a stand-in for a value we wanted to protect.

Pope continues, “We journalists, as individuals, are not special people. We have no unique right to support or sympathy. But the point is that we, collectively, represent something that our society has decided is worthy of protection.” Pope’s point goes directly to a growing subtext in present debates about “fake news” and risks to journalism as a profession, a recognition of its societal importance.

Our society, through the First Amendment to the Constitution (“Congress shall make no law … abridging the freedom of speech, or of the press”), surely had decided to protect the worthy contributions of journalists from governmental interference – and the individuals themselves. And journalists globally have begun pushing for international collaboration to expand guarantees more widely, such as a proposed UN-promulgated International Convention on the Safety and Independence of Journalists and Other Media Professionals, led by the International Federation of Journalists (IFJ). The IFJ’s proposal responds to the realities of a fraught few years for the profession. In Yemen, some 35 journalists have been killed since the country’s civil war began in 2011, and eight so far this year alone. At least 45 journalists, globally, have lost their lives in the first 10 months of 2018, among whom 27 were confirmed as murdered. To wit, the IFJ’s proposed Convention would include various protections aiming to deter violence, threats, and politically motivated intimidation of journalists, extension of humanitarian law concepts to ensure reporters’ safety in conflict zones, and similar measures.

The humanity of journalists—and their own individual rights—often remain overlooked. While the gruesome murder of the Post’s Khashoggi’s in Istanbul catalyzed global attention, the sentencing of two Reuters reporters to seven years’ hard labor on dubious grounds, following their later-verified reporting on a massacre of Rohingya civilians in Rakhine State, Myanmar, barely registered. Other recent politically motivated arrests of journalists include Austrian Max Zirgast, arrested by “anti-terror” authorities in Turkey, adding to the “dozens of journalists” earlier arrested following the “failed military coup attempt” against Turkish President Erdogan in 2016. At least eight journalists were arrested in late September in Uganda for covering the return of an opposition leader, MP Robert Kyagulanyi, “the latest incident of Ugandan security personnel assaulting, harassing, or arresting journalists covering political tension” in the country. Four journalists, including the deputy editor-in-chief of Xinjiang Daily, were arrested in China’s Xinjiang Uyghur Autonomous Region the same month, accused of “publishing ‘two-faced’ articles,” a “vague term” indicating content “allegedly secretly [opposing Chinese] government practices.” As The Atlantic’s Krishnadev Calamur summarized, Khashoggi’s death was a signal of “a larger pattern of violence inflicted on journalists around the world … Year after year, reporters are detained, abducted, and, with some frequency, killed.” Calamur’s colleague, David Graham, decried the U.S. government’s at-best tepid response as “the end of American lip service to human rights.”

Unfortunately, all the foregoing trends appear present in the United States as well. In July 2018, Colorado Independent editor Susan Greene was “detained for ‘interfering’” with the police in Denver, Colorado, not far from the Colorado State Capitol. In May 2017, Montana Congressman Greg Gianforte attacked Guardian reporter Ben Jacobs after the reported “asked the then candidate a question about healthcare.” (Gianforte later pleaded guilty to assault, but nevertheless won his election.) And in late June 2018, the mass shooting at the Capital Gazette of Annapolis, Maryland—which left five Gazette reporters dead and two others injured—triggered mass responses from law enforcement agencies nationwide “to provide protection at the headquarters of media organizations.” From last week’s high-profile pipe bombs, sent to CNN headquarters along with noted Democratic politicians and backers, to the multimillion-dollar libel verdicts against The Raleigh News & Observer in October 2016, the world’s reporters face risks both legal and lethal.

Each of these cases—and especially the still-unfolding story of Jamal Khashoggi’s murder—highlights Kyle Pope’s earlier commentary on the importance of journalists to all societies. But each of these cases, of course, reflects an actual individual – a human being behind a byline or photo credit, with their own individual worth and singular humanity. These two understandings of journalists are not mutually exclusive, but instead are, or should be, mutually reinforcing. And policymakers and political leaders, perhaps following or building upon the IFJ’s proposed framework for a journalists’ human rights convention, must take seriously the risks facing the media at home and abroad.

Many reporters and photographers have lost their lives in crossfire, victims of the very conflicts they gave everything to shed light on. Many more have faced harassment, criminal charges, assault and, again, even death, far from the front lines. Our discourse—not to mention our laws, our policy priorities, and our foreign relations—must recognize and respond to these threats.

Authoritarian regimes have long threatened free media and free expression, as well as those who exercise those vital social functions. Today, however, we must be cognizant in all societies of these threats. Even if these values are enshrined in the First Amendment to the American Constitution, the Universal Declaration of Human Rights, or the Charter of Fundamental Rights of the European Union—all, in principle, inviolable—they must be vindicated and reaffirmed continuously. Revoking publication or television licenses remain obvious aberrations but preventing the dehumanization of journalists entails the same underlying concerns.

Again, as Kyle Pope eloquently noted, the murder of Khashoggi shocked global consciences because, “as a journalist, [he] represented something bigger than [himself], something that leaders around the civilized world have come to value.” That is, journalism and journalists reflect our commitment to information, to expression, to understanding governments and governance, as well as our commitment to seeing problems in the administration of our societies. The individual journalist, then, must be protected as an individual, endowed with human rights as much as any other. But as the guarantors of knowledge and understanding of human rights beyond themselves, journalists’ safety and capacity to work must be ensured – and we all must act vigorously whenever their safety and capacity are threatened, however overt or furtive the menace may be.

Andy Carr is a third-year law student at U.C. Hastings College of the Law in San Francisco, California. Previously, Andy extensively studied and researched in political science, receiving his BA and MA degrees at Christopher Newport University and Pennsylvania State University, respectively, and plans to return to complete his PhD beginning in fall 2019. In addition to human rights, media and journalism, and constitutional law, Andy is most interested in questions of democracy and democratic theory – what makes for a truly democratic society, what risks confront representative governments. In addition to his academic training, Andy has worked for a boutique campaign compliance law firm and two global human rights nonprofit organizations, in San Francisco and Washington, D.C.