Freedom of the Printing Press?


From 2011:

In his landmark new article on the press clause’s original meaning titled “‘The Freedom of…the Press,’ From 1791 to 1868 to Now- Freedom for the Press as an Industry, or the Press as a Technology,” UCLA law professor Eugene Volokh argues the Founders meant the press clause’s “the press” to be the printing press (a printing technology) and any future communication technology.  Crazy, right?  So the Founders really meant something more like “freedom of…the printing press” or “freedom in the use of the press”?

Volokh describes how, with no significant exceptions, prominent writers the Founders often cited, including William Blackstone, Jean-Louis De Lolme, and George Tucker, connected press freedom with the right of every “freeman,” “citizen,” or “individual” to “write,” “print,” or “publish” his or her thoughts.  This fact implies the Founders didn’t intend the press clause to protect the existing or future collection of “newsmongers” per se but rather to recognize the right of any person (or “freeman”) to use printing presses (Until 1694, England imposed licenses on publications, which the Founders abhorred).  James Madison’s following first draft of the Bill of Rights’ speech/press clauses highlights this point: “The people [emphasis added] shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

So this morning, my ‘debating’ work colleague said that he supports journalism (freedom of the press) but not journalists as it applied to the Fox reporter who kept her sources private. He thinks that she should be tried for concealing the identity of the person who leaked her information during a judge’s gag order. Freedom of the Press is not an issue, he says, because the story was published and distributed and she does not receive immunity from prosecution because she is a reporter. His point was that an order of the court to gag public officials was legitimate and therefore she should be compelled to turn over her source who broke the law. I repeated the established journalists’ argument that if reporters are required to divulge their sources that their sources will dry up.
My colleague asked why should reporters receive special consideration and not be held accountable like other citizens. After all, no one else is allowed not to testify when ordered by a court. I replied that wives are not forced to testify against their husbands why should they receive special dispensation under the law.
My colleague replied that there is a clear definition of a wife and there should be a clear definition of a reporter. I said that a definition of journalism is precisely what will create journalists as a special class of people who cannot be charged with contempt of court. He dragged out an example of a reporter who witnesses a murder and refuses to tell the court who did it. I said 1. There is no moral equivalency between a gag order on public officials and murder and 2. He himself had argued many times that no one should be charged with a crime for lying to investigators. (Silence being the least offensive lie.)
This is when he said again that he supports journalism but not journalists.
All of this occurred between 7:45 a.m. and 7:55 a.m. this morning.
So I had to go look for more information and I found the article above that Freedom of the Press meant the freedom to print your opinion and distribute it. Freedom of the Press did not mean Freedom for Journalists. Yet the two are linked aren’t they?
In today’s language, Freedom of the Press, should be construed to mean spreading your opinion around by media and it should not be tied to a person’s job or credentials. It is the right of a person to distribute his message around the country. Pamphleteers of 1780 are akin to bloggers today in my opinion. If laws are created that set boundaries around what a ‘journalist’ is, then we have created a special class of people with special laws due to the job they perform. That is elitism and undemocratic.
The government’s purpose in defining a journalist is the power to suppress those who do not meet the definition. Over time, the government will seek to erode the special status of journalists for more control and more power. Does anyone doubt this? It won’t be through conspiracy but through opportunity. That is how these things work. ‘Striking while the iron is hot’ is the mantra of powerful people who seek opportunity to advance their causes, their hidden agendas.
The first amendment does say: “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 peaceably to assemble, and to petition the Government for a redress of grievances.”
Please note that the sentence structure implies that the freedom of speech is linked to the freedom of the press.The authors wanted to be certain that no one in the future would think that the freedom of speech was limited to a person talking but that it included the ability to distribute speech in written form as well as in verbal form. Commentary was included as speech but was ‘news’? At that time, commentary and news were linked as one and the same.
What to say then about gag orders and the distribution of information by journalists, who obtained it from those who were bound by judicial decree not to release it? Should they be compelled to release their sources?
Perhaps the question is ‘does the Freedom of Speech also include the Freedom not to Speak?’ I think so. Without the ability to choose when to speak and on what topics, there cannot be freedom. But like all freedoms, there are limitations. One should not be permitted to remain silent when justice to a victim will be denied. Yet, one should not be compelled to remain silent with information about an alleged offender. Clearly that is what the judge was seeking with his gag order. He was compelling those with information about the offender not to release that information to the public and he wished to punish the offending law enforcement official who defied him.
There is no doubt that the court should pursue an investigation to determine the offender but that does not mean the court ought to compel a reporter to disclose his/her source. And that was the final result of the trial, wasn’t it? Well, no, actually. The ruling was whether New York’s Shield Law applied to New York journalists when they were traveling in other states. The New York Court system ruled that “an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy,”
The courts of New York have a public policy that ought not to be offended…apparently. Sigh… it is so complicated when the courts stray from the law and begin to support and establish public policy. The headline for that piece said “New York’s top court blocks Colorado from forcing Fox reporter to reveal sources or face jail”. Giving credit to the court system for supporting public policy is never good. Supporting the law is better.
So my conclusion is that while reporters and journalists are not enshrined with Constitutional protections per se, compelling them to reveal their sources effectively removes the benefits sought by the Freedom of the Press. I also conclude that New York Courts think more about its policies than the law and that is dangerous and offensive to me. And finally, New York’s Shield Law does precisely what I said it will do: it created a special class of citizens with more rights than you or I. The State of Colorado should feel snubbed by the State of New York for extending its Shield Law protections into other states. Will Colorado take this to the next level? I don’t know.

Author: Reasonable Citizen

Reserved, inquisitive, looks before leaping, www.reasonablecitizen.com

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