Are they or aren't they journalists? State law seems conflicted, which "torques off" Cory Heidelberger

Last Updated by Kevin Woster on
Cory Heidelberger looks like a reporter in the 2012 Noem interview

Cory Heidelberger makes an important observation: These days the world is full of people who carry a printing press in their pocket.

Yes, a tiny printing press, with a monster reach.

Or at least they can carry one, if they want to.

It’s a free press, by the way. The First Amendment to the U.S. Constitution makes that pretty clear, along with a few other things: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

It’s elegantly brief. But there’s a lot to discuss and debate in those relatively few words. And for this discussion it’s the part about “”no law … abridging the freedom … of the press” that really matters.

The “press” that was declared free of government abridgment in the First Amendment wasn’t necessarily meant to mean a massive printing press that churns out thousands of newspapers overnight, or has a staff of reporters and editors and layout specialists, or delivery people, either.

At least, that’s Heidelberger’s contention. And he seems to have a First Amendment and historical basis for what he believes. 

“So you have the right to exercise the First Amendment by an individual. Anyone can be a journalist,” Heidelberger says. “We have lots of people who have a press in their pocket, with a cell phone or whatever.”

I’m charmed by the press-in-your-pocket thing. But as you might imagine, I’m a little sensitive about who calls themselves journalists and what that really means. Because it matters to me, a lot.

I went to school to be a journalist. I’ve committed my professional life to being a journalist.  I’ve received on-the-job training and supervision and guidance and mostly constructive criticism and professionally based affirmation, to be a journalist.

A better journalist. That has always been the goal.

I’ve been working for newspapers, primarily, and other mainstream-media news outlets since I wrote my first story freelance for the Chamberlain Register in 1973.

The notion that “anyone can be a journalist” is jarring to me, because I believe that, no, not anyone can be. Not anyone should be, or try to be, or pretend to be, or be seen as such when in fact they might not be, and often aren’t.

At least, not under my definition of “journalist.”

But the times are changing in a computer-dominated world

But I’m 67, and kind of set in my ways, which are ways shaped during a different time for newspapers, and for news.  Are my beliefs on this outdated? Heidelberger would argue that they are.

And in today’s internet-connected world, I have to admit that he might have a point. And we discussed it in some detail during a couple of phone conversations — interviews, if you like — over the new reporter shield-law and the decision by state legislators and the governor not to include bloggers behind that shield.

I looked at that issue last week in a pretty lengthy story below this one on this blog. Check it out, if you have a strong will, a snack and a water bottle. 

But a key point is that lawmakers concluded during the 2019 session that only what we’d probably call mainstream media news outlets and reporters  — people like me, although mostly younger — would be covered by the new law, which clarifies and perhaps even adds to powerful protections under the First Amendment.

For reporters. For journalists. 

The argument by a majority of lawmakers was that MSM journalists — print or broadcast — have more standards and requirements of accountability, an editorial process with oversight and a commitment to fairness and accuracy — however imperfectly accomplished — rather than one-sided advocacy.

Bloggers are mostly about advocacy, though they certainly can do plenty of reporting while advocating, some of it quite good. 

Heidelberger doesn’t deny his advocacy inclinations or the fact that he’s freed from a system of review and accountability that MSM journalists work in.  But that doesn’t matter, he argues, to the First Amendment and shouldn’t matter to the state when it designs a reporter-shield law that specifies that, with rare exceptions, journalists can’t be forced by threat of legal penalties to reveal confidential sources and hand over professional notes.

“The Constitution doesn’t seem to refer to a ‘press’ as having an editorial board,” Heidelberger said. “It refers to it as ‘the press.’”

Heidelberger considers himself “the press,” and not just because the word is part of the name of his blog, Dakota Free Press. It has a subtitle that I love, by the way: South Dakota’s True Liberal Media.

And that’s exactly what it is, which you’ll see if you read what he writes on his blog, as you should. It’s good stuff. Often creative stuff. Relevant stuff. With a slant.

He’s a Democrat, you see. No, I mean really, really a Democrat. Passionately so. And he wears that label proudly. He likes another label even better, though: “Atheist husband of a Lutheran pastor working at a Catholic college.”

Has a nice ring to it, don’t you think?

A little background on the man behind Dakota Free Press

The 47-year-old Madison native does indeed work at a Catholic college, Presentation in Aberdeen. There as an education technologist and faculty staff development specialist he puts to good use his undergraduate mathematics degree from SDSU and his master’s degree in information systems — with doctoral-level research that never resulted in a thesis — from Dakota State University.

But he got around the educational world in interesting ways before landing at Presentation. The journey included years or teaching math and English and coaching debate at Montrose High School, which is when he began the first iteration of his blog, Madville Times in 2005. He moved back to Madison and a home on Lake Herman in 2007 for graduate study at DSU.  And, after his study at DSU, he and his wife and daughter were in the Black Hills for a couple of years, where Heidelberger taught French at Spearfish High School.

If you pay attending to what is sometimes called the blogosphere in South Dakota you already know quite a bit about Heidelberger. What you might not know is that when he began his blog in 2005, he was following a fellow Madison High School Bulldogs debater and 1989 graduating classmate of MHS, Jon Lauck.

Lauck is a powerfully partisan Republican who made a name for himself in blogging in 2004 and also landed what appears to be job in perpetuity with the John Thune staff. That year Lauck was part of a blog designed to help Thune in his successful challenge of Democratic Sen. Tom Daschle, who was his party’s powerful leader in the U.S. Senate and a target of conservatives nationally. And most observers, including Thune, think the blog helped bring Daschle down.

Along the way, it also hurt my old friend and Sioux Falls Argus Leader colleague David Kranz, who was targeted by the blog with attacks right along with Daschle. David, who died last year after years of declining health, was deeply wounded by those attacks.

Heidelberger was a casual observer to most of that. He hadn’t been especially political prior to the bristly, expensive 2004 Senate campaign and its national profile. He was a registered Republican, not with any particular passion or conviction but just because it seemed like less government might be a good idea overall.

“I was not at all politically engaged back then,” Heidelberger says. “I was still a Republican and kind of cheering for John Thune.

But he noticed Lauck and the blog, and got interested in the idea of communicating online.

“I just looked at it and thought what Jon was doing was kind of cool,” Heidelberger said.

So this blogging thing might be a good idea

He talked about it with his wife, who suggested that he explore the possibilities of blog platforms at the time. He did. And he was a natural, beginning his Madville Times blog, which soon became a favorite of liberals and a regular read for those of other political persuasions.

Over the last 14 years there have been location and job changes, and the blog became Dakota Free Press. Heidelberger has become a prominent spokesman for the liberal cause in South Dakota, who backs up his words with some astute snooping and good writing.

Almost always with a slant.

To which he says, “So what?” And to expand on that for him, just imagine what journalism was like when James Madison wrote the first 10 amendments to the U.S. Constitution, which were approved by the Congress as the Bill of Rights and ratified by the states in 1791.

Do you think it was all large, well-staffed newspapers with training and monitoring programs committed to fair-and-balanced reporting? Hardly. It was a rant fest, large and small — with everything from actual newspapers to hand-printed pamphlets railing against the powerful and/or corrupt, in the world of government especially.

“It was very much individuals who didn’t exercise any kind of objective journalism,” Heidelberger says. “The ‘press” then was guys with their printing presses raising hell.”

Even before that time, the battle for a free press raged, and the Peter Zenger trial in New York City became a defining point in the development of a public demand for free expression, in speech and press.

Interestingly enough, considering the attacks on the press these days by Donald Trump and his supporters, Zenger was charged with libel for printing stories from anonymous authors, whom he refused to identify. Zenger was declared not guilty by a jury of his peers, even though the judge essentially directed the jury to find him guilty.

Zenger and his trial became a symbol of the free-press philosophy of the new nation that would eventually be written down in lasting law.

So, were Zenger and his anonymous writers closer to me or closer to Heidelberger and Dakota Free Press? Good question.  Were they closer to me or to Pat Powers of the blog South Dakota War College in Brookings which is generally considered the Republican alternative to Dakota Free Press. Another good question.

Powers considers himself a journalist, too, and back a few years a circuit court judge agreed with him. 

Looking back to when a judge called Powers a journalist

In a court case in 2013, Circuit Judge Vince Foley sided with Powers and his attorney, Joel Arends, on the question of whether Powers was a journalist. As reported by my former Rapid City Journal colleague David Montgomery, who was working for the Argus Leader at the time, Foley also required Powers to show up at a trial where he was being called as a witness.

According to Montgomery’s blog story (yes a story on his Political Smokeout blog on the Argus website), Powers had written blog stories about the activist, Daniel Willard. Willard faced misdemeanor charges for sending robocalls, without proper disclaimers, attacking certain politicians prior to the 2012 general election. 

Willard’s lawyer, R. Shawn Tornow, wanted to call Powers for testimony at the trial, to which Arends objected. Judge Foley decided that Powers could be called but that his testimony would be heard in private and reviewed by Foley to see if it could be presented to the jury.

But along the way, the judge also said, “bloggers in their vein are journalists in the modern sense of the word.”

Heidelberger says the state Legislature has previously seemed to affirm such a determination in law. In the portion of South Dakota Codified Law affecting the coverage of events by the South Dakota High School Activities Association, statute defines “journalism” as “the gathering, preparing, collecting, photographing, recording, streaming, broadcasting, writing, editing, reporting, or publishing of news or information that concerns matters of public interest for dissemination to the public, including on the internet; “

That sounds like me, and like Heidelberger or Powers, too.

The same section of law also defines “news media” as: “personnel of a newspaper or other periodical issued at regular intervals, a news service, a radio station, a television station, or a television network, regardless of whether the news media is in print, electronic, or digital format;”

Which sounds more like me than it sounds like Heidelberger or Powers. But you could also argue that both of them have a “periodical” that is “issued at regular intervals” in a “digital format.”

So here's what really torques him off

Looking at the definition of “journalism” already in law and the new reporter-shield law, Heidelberger concludes that, to lawmakers, bloggers are “sometimes journalists and sometimes not.”

He considers the new reporter-shield law to be “a step backwards from the direction the Legislature seemed to take” in previous legislation.

“And as a blogger, that torques me off,” he said.

As for Powers, the Pierre native and Brookings resident said in my last blog piece on the reporter-shield law that he considered the law a first step, hopefully to be followed eventually by one that elevates the standing of bloggers in law. And whatever he’s called in law or elsewhere, Powers plans to keep blogging.

“I like what I do, and I write what I care to write about, and I’m fortunate that a number of people enjoy reading my website on a daily basis,” he wrote in an email.

Heidelberger will continue to do that, too, but with a little bit more angst over his current standing in state law.

“We have one statute that says everybody who records and shares news is a journalist,” he says. “And we have a shield law that says, ‘No it’s somebody who’s working for the man.’ We’ve got two conflicting definitions under statute.”

Amidst that conflict, I remain a long-time mainstream-media reporter and columnist who also writes a blog for an MSM website — SDPB — and talks about what I write on public radio each week.

So I’m mostly old school, and still skeptical of the notion that “anybody can be a journalist.”

But I also think it’s kind of cool to have a press in my pocket.

The views expressed here are those of the author and do not necessarily represent or reflect the views of SDPB, Friends of South Dakota Public Broadcasting, or the State of South Dakota.