A paper presented at the AEJMC Southeast Colloquium, Newspaper Division March 9-11, 1995
Is journalism a profession, or more a craft or trade? The purpose of this paper is to present the debate, which has raged for at least the past 100 years, in an interdisciplinary fashion, filling gaps in the literature with respect to the law. Most journalists are not professionals under The Fair Labor Standards Act of 1938. Nor are most classified so by the courts. It is argued that journalism is not a bona-fide profession, and that scholars should consider the law in promulgating this debate.INTRODUCTION
The debate has raged in the United States for the past century over the occupational status of journalists in this democratic society. Historians, sociologists, ethics and communications scholars have weighed in on this debate. Neglected in most of the literature, however, has been the paramount role played by the legal system in deciding who qualifies as a professional under the Fair Labor Standards Act of 1938 (676 P.L. 1060). Constitutional First Amendment considerations also have been neglected by many who have written on this subject.
When doctors strove to become a professional class, they looked to the government for legitimization. Extensive higher education became the norm. State sanctioned licensing soon followed. The same was true for lawyers. Engineers and other types of technical professional fields required certification testing as a prerequisite to entry. Even the clergy looked for official church ordination, and not just anyone could qualify (Larson, 1977).
Journalism is a special case. Upon the founding of the United States of America, a free press was considered to be a necessity of democratic government, a watchdog against state tyranny. The First Amendment to the Constitution took up this charge, in part, with this well known language:
Congress shall make no law . . . abridging the freedom of speech, or of the press . . .Every other occupation that succeeded in attaining professional status in the United States did so by accepting regulation over those who qualified to practice. What scholar today would argue that the press in this country should allow licensing of journalists? For a government role in sanctioning the behavior of journalists? For mandatory periods of required education? Perhaps one day, under some unforeseen scenario of media industry crisis, media managers of the future may give in to those who would turn reporters and editors into nine-to-five professionals, with little control over what they report on and write about. That is not likely to happen in the foreseeable future, however, and there are those who would argue that it should never come about in this democratic society grounded as it is in the First Amendment.The debate as to whether journalists are professionals should turn on these fundamental questions: Are reporters, news writers, editors, photographers, technicians, and producers, professionals under the law? Should they be? Or is journalism--simply defined as those engaged in the process of gathering and disseminating news to the public, especially on public affairs--best described more as a craft or trade? If so, should it stay that way? What does the statutory law say on the subject? What does the case law show? What does all this mean for democracy?
The purpose of this paper is to present the debate in an interdisciplinary fashion, showing how sociologists, historians, ethics and communications scholars have handled the issue. Then some gaps will be filled with respect to the law. Finally, it will be argued that journalism is not now a bona-fide profession, and that scholars would do well to consider the law in promulgating this debate. It is acknowledged that there will continue to be those in the business and the academy who will strive to see journalism reach the status of a bona fide profession. There are those who still see professionalism as the bridge to ethical journalism and public support for journalism. It is argued here that while professional conduct is a good thing for journalists to practice, and an important thing for journalism schools to teach, it should be understood that journalism may never reach the status of the bona fide profession, and should not under the law. This would undermine the constitutional role journalists play as the watchdog of government in this democratic society.
BACKGROUND
HistoryThe desire to professionalize the field of journalism goes back at least to the era of the penny press in the mid-1830s, when publishers first attempted an objective approach to news for commercial purposes (Schiller, 1979). In the late 1800s, publishers and writers of the time held sharply contrasting views on the subject of whether journalists should strive to become a professional class alongside doctors, lawyers, scientists, engineers, teachers and the other emerging professional fields.
Reacting to the suggestion that reporters should seek a university education to become more professional in their work in the late 1880s, the famous New York newspaper publisher Horace Greeley reportedly dismissed the idea with the comment that he "would not hire a college graduate who did not show that he could overcome the handicap of a college education" (May, p. 20). In 1904 Joseph Pulitzer, another famous New York newspaper publisher, remembered today for the excellence in journalism prizes awarded annually in his name, articulated the need "to raise journalism to the rank of a learned profession" and to create a "class feeling among journalists," (Lewis, 1993, p. 20). He wrote:
Our republic and its press will rise or fall together. An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it can preserve that public virtue without which popular government is a sham and a mockery. A cynical, mercenary, demagogic, corrupt press will produce in time a people as base as itself. The power to mold the future of the republic will be in the hands of the journalists of future generations (p. 20).The idea of an objective model for a professional press did not take hold until after the first world war, when Walter Lippmann warned of a crisis in journalism in which the public was being deprived of access to information both by the government and the filtering process created by the rise of public relations specialists (Lippmann, 1922). Schiller argued that this gradual transformation of the journalistic mission "neatly accomplished" the "subordination of professional journalists to an explicit, rule-governed form of objectivity," which "gratified the occupation while simultaneously serving the encompassing need of commercial journalism to legitimate its major institutional role as the self-announced protector of the public good" (Schiller, 1979, p. 46). Birkhead (1986) argued that the professionalization of journalism "was more than a movement among journalists for occupational identity and prestige. (It was) a comprehensive social project of reinterpretation, in large part an ideological solution to a crisis of image for the press in the wake of industrialization" (pp. 1-2).In a paper that reflects much of the historical research from the point of view that journalism is (or should be) a profession, Sloan (1986) argued that two distinct yet interrelated trends dominated journalism in the twentieth century: "the growth of the news media as business institutions and the increased professionalization of working journalists" (p. 154).
Sociology
Some sociologists over the years, mostly using a structural-functional approach according to Allison (1986), have shown skepticism on the question of whether journalists are professionals or not. They argued that is not as important to ask which occupations qualify as professionals as it is to ask what it means for those engaged in an occupation to claim professional status (Soloski, 1989; Hughes, 1958). Soloski argues that the interplay of professionalism and news policies act as "an efficient and economical method by which news organizations control the behavior of reporters and editors" (pp. 207-208). This is done by news organizations, he says, to ensure long-term institutional survival (p. 208) and to permit news organizations to "maximize audience size and maintain firm control over the marketplace" (p. 225). As in most professions, formal education is where socialization to professional norms, such as objectivity, began (p. 211). The professionalization of journalists, he argued, resulted in "news (that) legitimizes and supports the existing politico-economic system" even though story selection may not be a "conscious" effort to maintain the status quo (p. 214).
Apparently Warren Breed (1955) was the first social scientist to look at social control in the news business in terms of professional codes. A former newsman who went on to study sociology after a stint in the Army (personal interview, 1994), Breed argued that every news organization has a policy of socialization, which is usually covert, "admitted or not" (p. 179). Breed concluded that conformity to policy leads to "cultural patterns" in America's newsrooms which "produce results insufficient for wider democratic needs" (p. 194).
Kimball (in Lynn, ed., 1965) asked the question: "Can there be a professional ethic in the absence of a profession?" (p. 245). He concludes that as long as entry into a career in journalism carries no compulsory period of specialized training and there is no recognized test to practice, and as long as reporters are basically hired hands with little control over their economic destinies, "journalists will forever be set apart from the ranks of the formal professions" (p. 246). This is as it should be, Kimbell seems to say, because the mass media are the "principal channels for most of the facts, figures, policy statements and policy criticisms upon which the dialogue of democracy depends" (p. 246).
Tuchman (1978) debunks the concept of news-professionalism put forward by those who compare the work of journalists to doctors, lawyers, teachers, social workers and even the clergy. He argues that the concept of professionalism in the media "has become a legitimizing force in Western society. The growth of the mass media is so intertwined with the emergence of modern capitalism that the media serve as the cultural arms of the capitalist industrial order . . . its methods are a means not to know" (p. 107, emphasis added). Through the location of bureaus and beats in national and state government centers, he says, "the media favor coverage of legitimated institutions" and thus reporters are less likely to learn of (or to cover) news "generated by social movements and political dissidents" (p. 109).
Janowitz (1975) acknowledged that building the institutions of professionalism in journalism have been "slow and difficult" (p. 626). He says there have been advances in the professional direction, and he presents two alternative models of the professional journalist. The first model is the gatekeeper, or public servant, who's job in a democratic society is to use the scientific method to "detect, emphasize and disseminate that which is important" (p. 618). Although Janowitz says the majority of journalists in America more closely fit this model, he admits that "powerful barriers" hinder the development of a true profession under the gatekeeper model because the typical journalist does not have "sufficient time or resources to pursue . . . investigations." Nor does it seem likely that many publishers or station owners will grant the time or resources in the foreseeable future on the local level, while at the national level, investigative journalism techniques are being employed for purely sensationalistic purposes, especially by tabloid television.
On the other hand, according to Janowitz, there is the advocate model, or journalist as critic and interpreter, which developed during the 1960s and early 1970s. Under this model, some journalists might argue that a quest for objectivity is impossible or doubtful and represents a "retreat from personal and political responsibility" (p. 619). The task of the so-called advocate journalist is to "represent the viewpoints and interests of competing groups, especially those of excluded and underprivileged groups." This conception brings to mind the liberal press championing civil rights, Woodward and Bernstein investigating the president's men, or proactive reporting aimed at educating the public about the need to preserve and protect the environment. Here the role of the journalist in a democratic society is to "insure that all perspectives are adequately represented in the media, for the resolution of social conflict depends on effective representation of alternative definitions of reality" (p. 619).
Janowitz argued that to fully understand the difference the issue of confidentiality is crucial. While gatekeepers may be more trusting and sympathetic to authority and be more willing to aid the legal process as citizens, the advocate believes to serve the public he must offer sources of information an absolute promise of confidentiality. He or she believes there is no requirement to assist the legal process-and is even willing to go to jail to protect a source. Central to this role is the belief that government routinely withholds or manipulates information, and that journalists have an obligation to expose this information in keeping with the "public's right to know"-thereby setting up a system in which the public and political leaders can take action to solve problems.
Critics of the move away from the gatekeeper professional model toward the advocate model have called the process the "Europeanization" of the American press (Weaver, 1974). This is an early hint of the partial return to American media of the partisan press reminiscent of the nineteenth century (Janowitz, p. 621, 625). It also brings to mind the rise of conservative commentator Rush Limbaugh, the proliferation of partisan commentary shows on talk radio and cable television, the resurgent interest in partisan publications such as William Buckley's National Review on the right and Mother Jones and The Nation on the left, as well as the emergence of conservative newspapers on college campuses.
From the field of sociology and the newer field of communications studies, other scholars have attempted empirical approaches to the study of journalism as a profession, often with the same negative results as historians and sociologists from the old school.
Communications
If job announcements for news positions in Editor & Publisher are an indication of whether journalism has grown more professional over the years, the answer is no, at least from 1920 to 1980 (Caudill, Caudill & Singletary, 1987). Assuming that job announcements reflect newspaper policy and practice, and thus by inference professionalism, Caudill et al. examined the content of ads over the years looking for trends and changes. They looked at what qualities were sought by news organizations: experience, education, thoughtfulness, generality, breadth, growth, success, tenacity and industriousness. For some journalists and scholars, the authors argue, "journalism can never achieve the classical standards of professionalism because entry to the field cannot by regulated, education standards cannot be required by law and workers cannot be licensed" (p. 577). They interpret their data to suggest "one striking fact-an absence of substantial change over the 60-year period of study (p. 579) . . . the data do not support an hypothesis of increased professionalism" (p. 580).
Windahl and Rosengren (1978) constructed a typology from which to describe the professional orientation of journalists, based on surveys of working journalists. They say to qualify as professionals, journalists should agree in large measure to the following traits. One, they should possess a positive view toward raising the education level in the field. Two, they should agree that specialized knowledge should be rewarded. Three, they should believe that more individual autonomy should be transferred to the practicing journalist. Four, they should adhere to the notion that professional organizations are essential, along with ethical rules connected with sanctions. Five, they should agree with the concept of service to the client-public (p. 473).
McLoed and Hawley (1964) put it aptly:
A recurrent journalistic controversy has involved the question whether journalism is a true profession or merely a craft. If any sort of agreement exists, it is probably that journalism is partly professionalized but lacks some important ingredients of a true profession (p. 529).They used a comparative approach and developed a Professional Orientation index, a measure of "degree of professional orientation" (p. 531). They also used a questionnaire of working journalists. While one could argue with some of their criteria for categorizing professionals and semi-professionals, some of their conclusions seem salient today. Among them, they argued that in accepting a professional outlook, journalists may move away from the outlook held by the public's they cover. "If communication is at all adversely affected by decreasing the similarity in outlook, then growing professionalization might actually create special problems in communicating with the public" (p. 538).Some of the research in the academic area is directly aimed at what can be done to make journalism more professional. For example, in an attempt to theorize about the professional attitudes of communications students toward mass communication theory, ethics and social responsibility, Surlin (1976) tested students for two psychological variables (fatalism and authoritarianism). He predicted that high authoritarian and externally oriented students would be less favorable toward theory, ethics and social responsibility-presumably less professionally oriented. And he found that more fatalistic students were less concerned with a responsibility to the public.
Much of the newer literature in the realm of mass media ethics takes a positive tack toward professionalism, but not all of it. In the banner year of 1986 for this debate, the Journal of Mass Media Ethics devoted a substantial part of an issue to the subject.
Ethics
Allison (1986) suggests that professionalization of journalism "is generally seen as a good thing . . . traditional literature tends to avoid thoughtful discussion of exactly what an occupation has to gain by professionalizing. It is simply assumed that any occupation worth its salt aspires to the most desirable of occupational forms, that of the profession" (p. 5).
May (1986) borrows from Flexner (1915) and synthesizes the distinguishing marks of a professional into three main categories: intellectual, moral and organizational. The first involves the acquisition and maintenance of specialized knowledge. The second involves using knowledge to serve human needs. In the third he concludes that journalists should police the behavior of each other. The reforms of the early twentieth century not only drew the professions into the university, May said, but "concentrated power in the professional's hands" (p. 26).
In the early 1980s, there seemed to be a crisis in journalism circles, "a crisis of values" or a "crisis of professional culture" (Birkhead, 1986, p. 37). Birkhead argued that the fundamental prerequisite of ethical behavior is "the freedom to make decisions or take actions" and that the professionalization of journalism "has not provided journalists with the appropriate kind of freedom of practice for fully meaningful ethical behavior" (p. 37). He argued:
What occurred in the name of professionalism primarily involved the legitimation of the press as a corporate or business institution. Especially in the case of reporters, almost the antithesis of professional autonomy came about. Professionalism became a standard and justification for controlling reporters in the news organization (p. 39) . . . The professionalization of journalism has so deviated from the standard understanding of professionalism as involving an occupation striving toward autonomy that it may well be called a perversion of the ideal (p. 40).According to Merrill (1986), the attitude toward journalism as an elite profession of "special people with special training and special credentials" is not only contrary to the spirit of the First Amendment and American tradition, but "evidences a supreme arrogance" (p. 57). He says professionalizing journalism has many weaknesses and dangers, including the loss of individual freedom and the constriction of journalistic pluralism and diversity, which could chill journalistic speech by raising the specter of possible expulsion.Journalism today . . . is one of the most open and diversified institutions in the country . . . But there is the danger that it will become a profession, thereby changing into a narrow, monolithic, self-centered fellowship of true believers devoid of an outward-looking and service orientation (p. 57).According to Kaul (1986), reporters "in America's news factories" are better described as "proletarian professionals," (p. 47). In Kaul's view, reporters first reacted against professionalization with the formation of the Newspaper Guild in 1933, a move which was vigorously opposed by the American Newspaper Publisher's Association. This is one of only a handful of cases in the scholarly literature which even mentions the law on this subject. Black and Barney (1990) do mention the Fair Labor Standards Act in the context of the case of Sherwood v. Washington Post, although the history of the law and a half-century of legal precedent is not explored. In they're attempt to answer the question, "Is journalism a profession?," they concluded: "No, not strictly speaking (p. 157) and ". . . the path toward professional, ethical journalism may be too filled with semantic and ethical pot holes to be worth pursuing" (p. 166). At the time of Kaul's writing, the National Labor Relations Board was in the process of reconsidering the legal status of journalists-and the legal status of journalists as hourly employees, entitled to overtime pay, was under assault in the courts.
THE LAW
Legal HistoryThe legal literature on journalists and the law is sparse, although interest in work hours appears to be growing among economists, historians, and other commentators who write about the workplace, according to DeChiara (1993) and Martin, Aalberts and Clark (1993). To understand the legal line in this debate, one has to go back to fourteenth century and the era of the "Black Death" in Europe, which decimated one-third of England's population. In 1349, the British Parliament set the precedent for government involvement in labor regulations by initiating a series of statutes designed to set maximum pay to restrain wage growth due to severe labor shortages (Martin, 1993). The first minimum wages were enacted in New Zealand in 1884, Australia in 1896 and England in 1909. In the United States, Massachusetts passed the first state minimum wage law in 1912 (p. 716). Between 1913 and 1919, 11 more states and two territories followed suit. A major study of working conditions conducted in Oregon at the time found that women in some occupations worked under conditions that were "ruining their health" and for wages "too low to maintain a decent living" (p. 717).
Legal challenges began almost immediately, making their way to the U.S. Supreme Court in 1923. The District of Columbia minimum wage law was declared unconstitutional (Atkins v. Children's Hospital, 261 U.S. 525) on the grounds that it deprived employees and employers of freedom of contract (p. 718). Not until West Coast Hotel v. Parrish (1937) did the high court finally uphold a state of Washington minimum wage law-while the country fought the Great Depression.
President Franklin Roosevelt came into office in 1933 favoring federal legislation to combat child labor laws and wage and hour laws (Newman, 1994). As he witnessed millions of workers (the ones who could find jobs) sinking further and further into poverty and enduring horrendous working conditions, he took a forceful stand for the working class. By 1937, the time was ripe. After fighting the Supreme Court and losing on the National Industrial Recovery Act in 1937, Roosevelt continued to try to pack the nation's highest court with loyalists. He sent a message to Congress asking for a new minimum wage and hour law and the abolition of oppressive child labor. Senator Hugo Black of Alabama had been trying to win a consensus to regulate hours and wages, believing that: "The workers of this nation have not been able to obtain a fair wage based upon the idea of competition for a long time" and that they had "little prospect" of doing so (p. 217). "In the face of stern realities," Black said over the radio, "theories frequently fail to fit conditions" (p. 217). He appealed directly to his Southern brethren, who were opposed to federal intervention. Facing an unprecedented corporate lobbying effort, which descended on the nation's capital to try to halt the measure, Black was willing to compromise to get the basic bill through Congress. He agreed to exemptions from the 40-hour week for farmers, fishermen, foresters, railroad workers and "mom and pop" retailers, and certain professional occupations (676 P.L. 1060). Opposition forces fell away one by one. The importance of the act is reflected best in what FDR said when he signed the bill into law:
Except perhaps for the Social Security Act, it (the FLSA) is the most far-reaching, far-sighted, program for the benefit of workers ever adopted here or in any other country (Nordlund, p. 715).At this time of great economic crisis in the United States, when unemployment was rampant and paltry wages barely ensured survival for millions of Americans, the FLSA was passed to combat unemployment and to try and safeguard a basic standard of living for hourly workers (Lipman, Plesur, and Katz, 1994). Over a period of years, the act mandated a reduction in the number of hours non-exempt employees could put in during a specified work week without the employer being required to pay overtime (Murphy, 1986).The Fair Labor Standards Act
At the core of the debate over whether journalists are professionals are the dual issues of workers' wages and hours under the Fair Labor Standards Act of 1938. At the height of the misery of the Great Depression in the 1930s, Congress found the existence of labor conditions "detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general welfare of workers" and set out to "correct" and "eliminate" those conditions. The goal was to fix the problem "without substantially curtailing employment or earning power" of industries across the land (676 P.L. 1060). The act created a Wage and Hour Division in the Department of Labor and authorized the appointment of an administrator, to be appointed by the President and confirmed by the Senate. A set of rule making and policy recommendation committees were set up representing all the major industries at the time.
Every non-exempt employer "engaged in commerce or the production of goods for commerce" became subject to the act, and required to begin paying a minimum wage, at that time 25 cents an hour (p. 1062). The minimum wage was raised in the act to 40 cents after seven years, and has been raised numerous times over the years to its current level of $4.25 an hour. The original act set maximum hours employees could be required to work in a standard work week without being paid overtime. In the first year after passage, the act required a maximum of 44 hours. The second year it was lowered to 42 hours. After the second year the maximum was set at 40 hours, with a time and a half provision, where it stands today.
As Newman indicated in his analysis (1994), many compromises became necessary to get the act passed through Congress. According to the act itself, many exceptions were included. Certain employees were exempt who worked seasonally, such as some farm workers, and those who negotiated separate contracts through collective bargaining. Dairy workers were specifically exempted, and language was added to allow the industry committees to recommend changes in minimum wage rates from time to time based on "(1) competitive conditions as affected by transportation, living, and production costs; (2) the wages established for work of like or comparable character by collective labor agreements negotiated between employers and employees by representatives of their own choosing; and (3) the wages paid for work of like or comparable character by employers who voluntarily maintain minimum-wage standards in the industry" (p. 1064).
Further exemptions were made for anyone "employed in a bona fide executive, administrative, professional, or local retailing capacity," including "outside salesman" (p. 1067). Seamen and employees of airlines were exempt, as were commercial fishermen, railroad workers and bus drivers. Children were exempted in the motion picture industry, as were certain apprentices and handicapped workers. The only mention of media workers in the act comes under a section that specifically exempted those employed "in connection with the publication of any weekly or semiweekly newspaper with a circulation of less than three thousand the major part of which circulation is within the county where printed and published" (p. 1067).
The act called for public hearings when changes were recommended, and specifically cited the Federal Trade Commission Act of 1914-giving the administrator the power and resources to conduct investigations into reported violations of the act. It called for any person "aggrieved" under the act to petition the nearest federal circuit court of appeals or the United States Court of Appeals for the District of Columbia, "within 60 days" (p. 1065). The law also made it mandatory for all employers falling under the act to "keep and preserve" records of employees' hours and wages (p. 1066).
The law made it a criminal offense to violate any section of the act, including shipping any goods produced by workers who were not paid in accordance with its provisions. Violators became subject to a maximum fine of $10,000 and maximum sentence of six months imprisonment. Violators were also subject to civil penalties for back wages, damages and legal fees.
Case Law
The first challenge to the New Deal regulatory scheme set up by the FLSA began in the early 1940s in Tennessee. Wage and Hour Administrator L. Metcalfe Walling brought a petition against the Jackson Sun for violating the law by working employees in excess of maximum hour provisions without the required overtime compensation (Walling v. Sun Publishing, 29 U.S.C.A. 215). The U.S. District Court of the Western District of Tennessee enjoined the newspaper from further violations, but the newspaper management appealed to the U.S. Sixth Circuit Court of Appeals (140 F.2d. 445). Judge Simons amended and affirmed the lower court's ruling. The court rejected the newspaper's First Amendment immunity argument, finding that a newspaper publishing company was "not immune" from the FLSA "by virtue of First Amendment prohibiting Congress from making any law abridging `freedom of the press'" (p. 445 and 447).
The court also found that the FLSA did not violate the Fifth Amendment "so long as classification (of circulation and frequency of publication) appears reasonable" (p. 446). Citing a case that was decided by the U.S. Supreme Court, one year before the FLSA became law (Associated Press v. National Labor Relations Board, 301 U.S. 103), the court found, "The publisher of a newspaper has no immunity from the application of general laws . . . has no special privilege to invade the rights and liberties of others . . . must answer for libel . . . may be punished for contempt of court . . . is subject to anti-trust laws. Like other (businesses, the publisher) must pay equitable and nondiscriminatory taxes (p. 447) . . . True, it is, that the enforcement of the present law may drive an economically marginal newspaper to the wall, but the same may be true of an increase in taxation or judgment for libel, and the Constitutional immunity is not a guarantee to a newspaper publisher of economic security, or a sanction to force him from the business hazards to which others are subject" (p. 448).
The court found that a newspaper publisher did not qualify as a retail or service establishment under the FLSA, and that the administrator's regulation defining an executive was not "invalid as arbitrary" (p. 446 and 448). In addition, the court found that the company's composing room foreman did not occupy a "bona fide executive, administrative, professional capacity," because he did not spend 80 percent of his time in administrative duties directing the work of other employees, as NLRB regulation 541.1 requires. The court also found that reporters and editors were not "professional workers" under the FLSA (p. 446 and 449).
Only on one count did the court rule in the newspaper's favor. It lifted the injunction imposed by the lower court prohibiting the distribution of the newspaper through interstate commerce, saying "there is no precedent . . . for the breadth of the injunction in the present decree" (p. 450).
This case set the precedent that most courts stand on even today. It wasn't until the 1980s, at a time when the country seemed to be undergoing a dynamic conservative realignment, that the issue of journalism pay and professionalism came to the forefront in the national debateon the subject. It was a time when Present Ronald Reagan filled the federal judiciary with conservative judges, who had to pass an unspoken litmus test that they would only interpret the constitution and not legislate from the bench.
The first case filed in this series also took the longest to decide. The results, however, have ultimately been the same in each case. U.S. Department of Labor v. The Concord Monitor (834 F. Supp. 530 LEXIS) was filed in 1981, wound its way through the legal system, sat on one judges' desk until he died, and was finally decided in favor of the New Hampshire reporters, editors and photographers in November, 1993. U.S. District Judge Shane Devine said in his decision that the "inquiry into exempt status remains intensely factbound and case specific . . . the resolution of the issue here addressed is necessarily of limited precedential value" (p. 532). Yet those in the industry watched the case closely to see if the court might find a way to overturn a half-century of precedent and classify editorial employees as professionals. According to an Associated Press account of the case, a "parade of witnesses" came forward to testify on both sides (1986). Monitor publisher George Wilson tried, unsuccessfully, to make the case that the Labor Department definition of reporters was "outmoded" in light of technology (Garneau, 1993). Judge Devion said Wilson's arguments that the regulations are "out of date" should be given "some weight" (p. 535), although in the end he found interpretations of the regulations more persuasive.
The case began in late 1979 and early 1980, when the Labor Department investigated the Concord Monitor's payment practices and found that newsroom employees were not getting paid overtime they were legally entitled to. Reporters often worked more than 40 hours a week, especially those assigned to cover state and city government meetings (834 F. Supp. 530 LEXIS, p. 533). Although weekly time cards were kept, witnesses in the case testified that the newspaper management discouraged them from turning in overtime, and even altered time cards on occasion.
The overtime provisions of the FLSA mandate time and a half compensation for all employees who are not exempted as "bona fide executive, administrative, or professional" employees, the court reiterated (p. 533). Under Department of Labor regulations, there are two types of professionals that fall under the exemption. One is classified as the "learned professional," and is defined as one whose "primary duty" consists of work (a) "requiring knowledge of an advanced type . . . acquired by a prolonged course of specialized intellectual instruction;" (b) which requires "the consistent exercise of discretion and judgment;" and (c) is "predominantly intellectual and varied in character" (p. 433). A second type is the "artistic professional," and is defined as one whose work "is original and creative in character . . . which depends primarily on the invention, imagination, or talent of the employee" (29 C.F.R. @ 541.303(a)(1975).
Some newspaper writers would qualify as artistic professionals, the court found, if their work was predominantly "analytical, interpretive or highly individualized" (p. 534). Under regulation 41.3, this would include editorial writers, columnists, critics and "top flight" writers of analytical and interpretive articles (p. 534). On the other hand, reporters covering the police beat, a fire, murder, ship arrival, convention or sports event, "are normally performing duties which are not professional in nature within the meaning of the act and @541.3" (p. 534). The same held true for photographers. Devine ruled that "the record does not support the . . . contention that all news photography is art" (p. 538).
Each case, at least at the appellate level, has ended up virtually the same, going right back to Walling v. Sun Publishing, and to language written by Hugo Black in the FLSA. In Sherwood v. Washington Post (871 F. 2d. 1144), filed in 1986 and ruled on in April of 1989, the U.S. District Court of Appeals for the District of Columbia reversed a summary judgment against 13 reporters and editors who sued the Post for back overtime pay. A two-judge panel ruled per curium that the lower court was "dead wrong" in ruling that there were no genuine issues of material fact at issue in the case since both sides had filed opposing briefs. The lower court ruled "erroneously" that the deposed employees "indisputably produce original and creative writing of high quality" and were therefore "artistic professionals" (p. 1146).
In one of the most recent cases on the books, U.S. Department of Labor v. Gateway Press (13 F.3d 685), decided in January, 1994, a three judge panel of the U.S. Court of Appeals for the Third Circuit ruled that a chain of 19 community newspapers in the suburbs of Pittsburgh had violated the FLSA by not paying reporters overtime. While a few of the papers individually would have met the legal exemption by having circulations of less then 3,000, primarily limited to a single county, the court ruled that the law must apply to the entire group. As evidence, the court cited the fact that Gateway used group circulation numbers for business purposes, including inducements to sell advertising. The court put forward a tripartite test for courts to apply when grouping small papers. Circulation should be considered in the aggregate when the publications are "(1) related, (2) have a unified operation or control, and (3) have a common publishing purpose" (p. 696). In short, it should be taken into account when a publisher enjoys a "significant economy of scale" (p. 696).
The papers were not found to be guilty of "willful violation," and therefore subject to punitive damages, since the evidence did not show "reckless disregard for the matter of whether its conduct was prohibited by the FLSA "(p. 702). One new twist developed in the Gateway case. The lawyers for the paper cited the Bureau of Labor Statistics, which classifies reporters as professionals. Yet what the court said should give reporters everywhere relief.
When construing the FLSA and its exemptions, courts should look primarily to the purpose of the act itself-and not interpretations of the same or a similar term made in other contexts. Professional exemption status under the FLSA differs from professional status for the purpose of gathering statistics (p. 699).Two recent cases involving television stations, one national and one local, show how the FLSA also applies to broadcasting newswriters, directors, producers and editors. In Dalheim v. KDFW-TV (918 F. 2d 1220), the U.S. Fifth Circuit Court of Appeals in 1990 affirmed a district court ruling that 19 present and former general-assignment reporters, producers, directors and assignment editors were not exempt from the FLSA and DOL regulations, and thus entitled to overtime wages. In Freeman v. NBC (846 F. Supp. 1109), decided in August, 1993 by the U.S. Southern District Court of New York, Magistrate Judge Kathleen A. Roberts found that NBC failed to uphold its burden of proof that "by a preponderance of the evidence" the newswriters and producers fell "plainly and unmistakably" within the FLSA professional exemptions (p. 1160). In both cases, the violation was not found to be willful.
CONCLUSION
From the historical, sociological, ethical and practical evidence presented here, especially the law, it is clear that journalism is not now a bona-fide profession. Most reporters and other non-management news personnel at newspapers and television stations are entitled to one-and-a-half time overtime pay for every hour they work over 40 in a given work week, along with other non-exempt workers under the Fair Labor Standards Act of 1938. They are engaged in a trade filled with words and pictures. In practice, however, there is much abuse in the industry, print and broadcast. Many journalists have chosen to work overtime without compensation, "in effect volunteering free labor for the company but, in many cases, afraid to complain" (Freedman, 1992).Certainly, there are those in the business who come closer to behaving like professionals than others, most notably free-lance journalists, who control their own time and work space, write about what they want to write, negotiate their own fees. Few are they who make professional fortunes in this way, however, because more often than not, publishers save money by using freelancers. They don't have to pay for office space, utilities or health benefits. And they don't have to pay a freelancer overtime, in most cases.
It may not be an entirely bad thing for some journalists to talk about themselves as professionals, especially in the context of seeking public support for ethical practices in the exercise of a free press. When doctors, lawyers, and the rest were engaged in trying to turn their fields into full-fledged professions, they most likely talked the same way. Higher standards resulted from that discussion. But in the case of most practicing journalists, it seems polemical to call them professionals, since it is doubtful that like doctors, lawyers, engineers, scientists and educators, journalists will ever achieve full professional status in the U.S. Based on a half-century of precedent, it is certainly highly unlikely to occur under the law-without drastic changes in legal philosophy, or an attack on journalists rights by Congress.
The most recent ruling in the Sherwood case against the Washington Post by the lower court judge, however, may represent the first real threat to the rights of journalists to challenge publishers under the FLSA. The pay at the Washington Post is great compared to what most reporters make at heartland papers. Salaries for the original 19 plaintiffs averaged $55,000. Sherwood, the only defendent who remained in the case throughout the appeals, was as a highly specialized and well paid metropolitan reporter. As such he may have met the definition of an artistic professional under the law. Yet if this decision is allowed to stand, and if judges in other jurisdictions begin taking it into consideration in other cases, the craft of journalism for many may become a profession filled with overworked, underpaid, burned-out technitions, subject to firing at an owner's whim-who have little time or energy to care whether they fulfill their traditional watchdog role in this democratic society. It has already happened in some quarters, particularly in the South. It would be ironic if journalists were to become classified as professionals by the courts so that publishers and station owners could work them longer hours and pay them even less. After all, one of the primary drives for professional status is better pay, although that is not the most noble or most often cited reason.
Recommendations
Keeping all this in mind, journalism and communications scholars would do well to strongly consider the law in promulgating this debate. It is acknowledged that there will continue to be those in the business and the academy who will strive to see journalism reach the status of a bona fide profession. After a number of years in the business, and after conducting this research, this author will argue that talking about professional status for journalists is an exercise in polemics, and it may even prove harmful to the important watchdog role the press has to play in this democratic society over the long-run. By socializing journalism graduates year after year into the professional, gatekeeping model (to borrow from Janowitz), could it be that educators desensitize each new generation of reporters to the important role of the government watchdog, endemic to the historical and political development of this country?
Journalism is not a profession, but many of the relationships between journalists and their sources are highly professional relationships. They should and must be. Relationships between reporters and police officers, lawyers, politicians and scientists, to name a few.
Further research should be conducted into journalists' attitudes on attaining professional status. And considering the way we as educators prepare the journalism students of today to expect long-hours and low pay, and try to program them and socialize them into believing in the nobility of the craft, shouldn't we as educators and scholars find a way to inform the journalists of tommorrow of their rights under the law?
Endnotes:
1 At the time of this writing, the Clinton administration was pushing for Congress to increase the minimum wage again to $5.25 an hour.
2 Since this paper was accepted for regional presentation, the Sherwood case was tried and the lower court judge once again ruled that the well paid, specialized reporter at the Post qualified as an "artistic professional," since his work required "invention, imagination and talent." Sherwood, now working for WRC-TV in Washington, D.C., is likely to appeal, according to an interview he granted to Editor & Publisher (January 14, 1995).
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(At the time of this writing, Glynn Wilson was a free-lance journalist, the class of journalists most resembling true professionals, and a Master's student at the University of Alabama).
Copyright 1995 Glynn R. Wilson. All rights reserved.
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