On ‘Fox News Sunday’, Sen. Dick Durbin clucked about a Federal Shield Law and mentioned bloggers and tweeters and then said “Are these people journalists and entitled to Constitutional protections?”
Whoa,Nelly. Say What?
The short answer is ‘of course they are’. But short answers are often wrong. So let’s explore this…
The first amendment says:
“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.”
Nowhere does the Constitution talk about journalists. It talks about freedom of the press as it relates to Congress and its powers. The Press in 1787 were those people involved in the creation, production, and distribution of opinions, news, and views in which political assent, dissent, or reporting of political events occurred. We don’t define it that way anymore but we should. Some wish to more narrowly define the Press in order to control people who say things they don’t want said. Others want to include Better Homes and Garden as journalists if it wrote a piece about an existing marijuana garden. Both of these would be wrong but few care about right and wrong anymore, they only care about getting what they want.
Now, let’s talk about abridging: “shorten in scope”, “curtail”. That seems to be easy to understand.
And let’s understand what a Shield Law is:”A shield law is legislation designed to protect reporters’ privilege, or the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. Currently the U.S. federal government has not enacted any national shield laws, but most states do have shield laws or other protections for reporters in place.”
And why are even talking about Shield Laws, you ask?
Supreme Court case Branzburg vs Hayes:
“Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources.”
“In a fiercely split decision, the Court ruled 5-4 against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court “to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.” Justice White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that “from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished.”
Everybody knows that the First Amendment intended to protect the process of the Press as it relates to assent (or dissent )with the government. It is written so, (Congress shall make no laws….) but Justice White was more egregious than most because he conflated ‘press informants’ as being the same as the Press and mixed it all up with criminality rather than political assent or dissent. He sought to go after the informants to the Press via abridging the freedom of the Press without touching the concept of political assent or dissent. Here we are today still living with his cr@pola response.
So now let’s summarize: Because of the Supreme Court’s decision that allows federal and state governments to abridge the freedom of the Press with a threat of incarceration, rather than rejecting the defense argument because it was unrelated to political assent or dissent, the States enacted Shield Laws to protect the Press from Justice White’s view that the Press was unprotected in anything. Because those Shield Laws are not under federal control, Congress is attempting to write a Shield Law that protects journalists from federal consequences where the definition of a journalist will be something more narrowly defined than the press process, in toto, as evident in the First Amendment.
Does it take a rocket scientist to see that if there is a federal shield law that narrowly defines journalist as protected but excludes other labels like bloggers and tweeters that more freedom of the press is abridged? It shouldn’t take a scientist.
I know what you are thinking. You are thinking that if you tweet about your friend smoking dope that you are protected under the First Amendment and do not have to reveal who your friend is and the circumstances surrounding his illegal activities. Wrong.
The Press is a process. I mentioned above that it includes people who create, produce, and distribute opinions, news, and views about political assent or dissent. A political, social, and, at times, cultural blogger, like me, who uses free blogging platforms and does no investigation of original events is still the Press ….as long as I write about political assent , dissent, government, the tools of government, and any government activity. Drug manufacturing information and sources are not protected although we may wish them to be.
If Senator Durbin asks the question: Are bloggers and tweeters subject to constitutional free speech, the answer is unequivocally yes. When he asks if they are also constitutionally protected for freedom of the Press, the answer is perhaps. If they tweet that Congress sucks, or the President can kiss their hiny, that is protected political assent, dissent, and political current events.If they blog about illegal activity unrelated to politics and government, the answer ought to be no.