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Eco Roundup: Why Freelance Reporters Like Me Can’t Go on Strike Like the Screenwriters

At the end of every month, I assemble a round-up of stories I’m following and issues I’m covering, with palate cleansers at the end. You'll likely see more labor writing here in the coming months — starting with this:

In the last few weeks I’ve marveled with underpaid journalist friends about the power of the Hollywood writers’ strike, which actors joined this month. The question that keeps coming up is why can’t we do that?

A year and a half ago, my employer of eight years, The Intercept, unceremoniously dumped me. In the media industry these days — despite a wave of digital media unionization — the threat of being laid off is constant. Seemingly every week there’s another announcement of layoffs —Hearst laid off 41 people two Thursdays ago, for example.

I became a journalist in the dying days of print newspapers and magazines. As the news shifted online, the money that used to come in from print ad revenues was never replaced with anything consistent. It’s also been a period of intensified media labor organizing. During my internship at The Nation in 2013, we organized to get future interns paid, arguing that our low pay conflicted with the magazine's diversity efforts. At the time, we made $150 per week working full-time, and now interns there make $630 per week. As a staff reporter The Intercept, we unionized and fought for contracts that included $10,000+ minimum pay boosts, five months of maternity leave, and paid sabbaticals. However, the gains in wages and benefits secured at individual workplaces do not extend to freelance journalists — and many, if not most, of us at some point in our careers work as freelancers.

I decided not to look for a full time job, because I want to devote a lot of my energy to a big project I’m working on. To my surprise, I love working as a freelance reporter. You don't have a traditional boss. You pick your hours and what projects you work on. I even get a kick out the hustle of finding editors who will take my pitches and negotiating contracts for each project. I feel like freelancing is allowing me to do my best and most important work.

There’s a huge BUT: the pay is bad, and the benefits are nonexistent. Publishers consistently pay me way less as a freelancer than I earned as a staffer — and I generally get the “good” rates. I’m sure a lawyer could twist themself into a pretty knot to explain how that’s fair, but ultimately it’s a matter of who’s got power and who doesn’t. Time-consuming investigative journalism is particularly badly paid.

I am confident that this is going to change. Almost as soon as I entered freelance life I joined Freelance Solidarity Project, a very young, nearly all-volunteer organization that falls under the National Writers Union and is doing the heavy lifting of organizing freelance media workers.

So in the midst of me wrapping my head around all this, here comes the screenwriters shutting down Hollywood. These writers work project-to-project — similar to me — yet they have the power to shut everything down in order to achieve basic minimum work standards.

One of the first things I learned as a freelancer is we can’t do that. Freelance journalists are not allowed to work together to negotiate for minimum pay rates across the media industry, I was told. That’s because we — apparently — are each our own tiny business, and to set rates would be to act as some kind of illegal cartel. But somehow people who write movies and TV shows get to do it?

I asked a couple of my Freelance Solidarity Project peers to clarify what makes the screenwriters so different from us. Turns out it has little to do with the actual work that we do — it’s about power and a century of anti-labor organizing.

Freelance writer, book author, and National Writers Union vice president David Hill attempted to break it down for me. The idea that freelancers can’t do collective bargaining comes in part from an interpretation of the Taft-Hartley Act, which was passed by a Republican-controlled Congress in 1947, after a wave of strikes. It was meant explicitly to curb the power of organized labor. It says that in order for you to be considered an “employee” protected by the National Labor Relations Act you cannot be an “independent contractor.” What defines a contractor is hotly contested.

But that law doesn’t explain the gap in rights between us and screenwriters, Hill said. There's certainly structural differences between screenwriters and freelance journalists. Still, like freelance journalists, screenwriters sign contracts that they negotiate individually and that last a specific period of time. Yet, unlike freelance journalists, screenwriters are treated as employees — in other words, they get a W-2. “It's very important, because a lot of freelancers don't believe they CAN be on a W2 if they only, for example, write an essay for a publication,” Hill told me in an email. “But screenwriters and TV writers do it all the time. It's the employer who doesn't want to put us on W2s because they don't want the extra liabilities (unemployment, workers comp, social security) and would rather pass that on to us.”

It's not about the work that we’re doing; it’s about the power that we don’t have. “The WGA simply has sufficient power to enforce their demands,” Hill told me. “When the Guild formed, they controlled the labor pool, and the studios acquiesced to them.”

I read up a bit on the Writers Guild of America’s history and learned that the screenwriters' union formed in 1933, at the height of the labor movement, when Hollywood was in its infancy. Today, screenwriters negotiate individual contracts with project producers, but the union sets minimum standards via a negotiation with the American Motion Picture and Television Producers. (Journalists have no equivalent bargaining partner, but just because it doesn’t exist now, doesn’t mean it never could.) The screenwriters' union has faced legal challenges to its ability to maintain a contract but has fought back and won.  

For us to get what they have, we’d have to confront a century of aggressive political organizing meant to assure that we never build the power that WGA still maintains to enforce fair rates. Hill suggested that looking at the formation of WGA probably isn’t the best guide for how freelance journalists can win fair pay in the 2020s, because the historical and political context is so dramatically different. Instead, the place to look for hope is gig workers like Uber drivers, who are aggressively challenging rules controlling who counts as an “employee” that can bargain with employers.

The Taft-Hartley Act and whether freelance journalists could win protection from the National Labor Relations Act is only part of the story, Hill added. That law matters in cases where companies refuse to negotiate with workers. However, even if freelance journalists found a publication that was down to voluntarily sign a rates agreement with Freelance Solidarity Project, it could still be challenged as illegal price fixing under the 1890 Sherman Act. That’s the landmark law designed to break up Standard Oil — but that has since been repurposed to stop labor organizing.  

However, the foundations are being laid so that freelance journalists could win an antitrust challenge if we did try to bargain a contract. “My view is that freelancers have the right to form unions and negotiate collectively,” Hill said. He clarified he is not a lawyer, but added, “If we ever did so to the degree that we were challenged legally and had to fight it in court, we would likely win, especially given the current FTC chair and administration.”

Federal Trade Commissioner Alvaro Bedoya — whose institution enforces antitrust law — recently signaled that gig workers shouldn’t have to fear the Sherman Act. “Congress has made it clear that worker organizing and collective bargaining are not violations of the antitrust laws,” he said in a recent speech. “From the beginning, American antitrust law aimed to protect worker organizing – not limit it.”

It seems then, that one of the best lessons to be learned from WGA’s formation, is that it happened at the height of the labor movement, riding a rising tide of labor organizing. For freelance journalists, too, a key strategy has to be to build on and support labor fights beyond our own. “I think that Uber and other so-called gig workers will probably pave the way for this if they win some of Uber's legal challenges,” Hill told me. “But I also see no reason why we wouldn't, as media freelancers, want to join them in that fight.”

In case you missed it:

I had a piece published in the New Republic this month about a theme I’ll return to again and again: the lack of protections from deadly summer heat for people in prisons. People are dying, and reporters are increasingly paying attention. Here’s the piece and a summary I wrote up for the newsletter.

Also cool to see that my reporting for Grist about Cop City protesters being charged under Georgia’s domestic terror law was cited by Sen. Raphael Warnock in a letter to the Department of Homeland Security. As I noted in my reporting, Georgia justified its terror charges in part by claiming that DHS had designated the anti Cop-City group Defend the Atlanta Forest as a domestic violent extremist group. DHS countered that they don't designate groups that way.  It remains unclear what the hell is going on there. The letter asked that DHS issue guidelines to law enforcement about how to respond to DHS designations of groups as “domestic violent extremists.” The ACLU, Center for Constitutional Rights, and other legal groups followed up with another letter, also citing my reporting, stating, “We urge DHS to adopt more stringent standards for its collection and dissemination of information and ensure its intelligence products do not contribute to abuse by local and state authorities.”

An "intrusion into the lives of many hundreds of people"

The United Kingdom is in the midst of a public inquiry into undercover police officers who infiltrated mostly left-wing groups between 1968 and 2010. Investigators released their first — remarkable — report at the end of June, focusing on 1968 to 1982, and I spent some time this week catching up on it. The impetus for this investigation was a series of scandals related to police infiltrators, including revelations that an undercover police officer, Mark Kennedy, had started romantic relationships with more than 10 women as he infiltrated environmental activist groups. He wasn’t alone.

It’s an incredible repository of material, including meticulous accounting of the groups the undercover cops infiltrated — from Trotskyists to anti-apartheid activists to pro-Irish groups — with many of the original records posted online. The report lists 56 undercover officers, in many cases including their cover names and testimony that they provided. The undercovers’ work required befriending people by deceiving them, thus intruding on the lives of “many hundreds of people,” the document says, and sex with women unaware of their partners’ true identity was a “perennial feature” of the unit's work. The report also describes a macabre practice of undercover police taking the names of deceased children. In the vast majority of cases, the report's authors identified no serious crime or threat to the state that the undercover activity prevented.  

“My legs are shaking. And it feels like I can’t see well, I see dark.”

In the midst of a dangerous heat wave hitting much of the U.S., outdoor workers are largely unprotected. The result, as a recent Washington Post story by Jacob Bogage and Eli Tan pointed out, is deaths. Over the past five years, the Occupational Safety and Hazard Administration classified 121 workplace deaths as heat-related, but they acknowledged that this is inevitably an undercount, since heat deaths often count under some other cause, like cardiac arrest. The Biden administration is moving glacially to start to put in place guidelines for employers, but a lot of laborers are taking matters into their own hands, including UPS drivers. Grist had a good rundown of workers that have organized around heat. “In recent years, restaurant workers at Voodoo Donuts in Portland, Oregon; a McDonalds in Detroit; a Jack in the Box in Sacramento; and a Hooters location in Houston have collectively walked off the job to protect themselves from extreme heat,” wrote Tushar Khurana.

“What Enbridge did was gamble.”

A fourth aquifer breach caused by construction of the controversial Enbridge Line 3 tar sands oil pipeline was discovered this month in a wetland south of a wild rice lake in Aitkin County, Minnesota, according to the blog Healing Minnesota Stories. Ten to 15 gallons per minute of groundwater flowed to the surface, the DNR told the Star Tribune’s Jennifer Bjorhus. The corporation has already been forced to pay $11 million for previous environmental violations on the pipeline. I’ve written extensively about efforts to repress the Anishinaabe-led movement to stop the Line 3 pipeline as it was being built in 2021, and this is the type of issue that opponents were worried about. Since construction finished, a volunteer group called Waadookawaad Amikwag (which means “Those Who Help Beaver” in Anishinaabemowin) has been carefully monitoring the area for these kinds of breaches. They believe more will be discovered.

Palate Cleansers

I cover topics that are heavy and distressing to take in, so I'm ending these posts with things that make me feel grounded: food, nature, community.

Something Delicious: Tomato sandwiches

This month, I started getting bags full of farmer-grown tomatoes from my CSA, just as the tomatoes on my deck are turning red. There is nothing I want more at this time of year than a tomato sandwich. My mom first taught me about tomato sandwiches at my grandma’s little house in Virginia when I was a kid. For me, it’s a super simple, summery treat, with a lot nostalgia attached.

There are all kinds of fancy ways you could spin this. But what I want is thick slices of a garden-grown tomato sprinkled with salt and pepper and set in between two ploofs of mayonnaise-slathered Wonder bread. I don't usually buy Wonder bread, so the dream typically comes true at the home of a relative who happens to have these ingredients laying around.

Until that opportunity  arises, I’m going to use the fancy bread I keep sliced and frozen in the freezer to make this killer garlicy sardine and tomato toast. Yum.

Garden Update: Abundance

The deck garden is turning into a wild tangle. Black-eyed coneflowers and borage are falling over under the weight of their yellow and blue-violet flowers. A half a dozen green tomatoes are on the cusp of ripening, and the vines of bitter melon plants we got for free have managed to climb up the concrete wall of my building to produce tiny aliens. As soon as I bought chicken wire to keep the squirrels away — but before I actually built anything — the animals found something better to do. That means a lot of the plants we started from seed inside — that looked anemic for so long — have had time to grow free of harassment. Maybe we’ll actually get some peppers out of them. Those early summer feelings of garden failure are gone, as we settle down outside during warm evenings to enjoy the green.  

Bulletin Board: How to Support Striking Actors and Writers

The writers’ and actors’ strike means a lot of people are unable to earn a living right now. WGA is supporting folks via the Entertainment Community Fund, which you can donate to here. If you don’t have extra cash, WGA also provides info about how to join a picket line, contact elected officials or post on social media.