Who is the Press?
Defining who is entitled to First Amendment protection under the Freedom of the Press clause sounds like a difficult task. After all, the Constitution was written and ratified in 1787. The framers could never have conceived of "tweets," blogs, or the Internet for that matter, or could they?
At the time of ratification the press consisted of a small number of city papers with circulations no greater than 2,000, most never even reached 1,000.
A great deal of news travelled either through handbills or by word-of-mouth. Those who gathered to write The Constitution didn't exclude certain types of citizens from being able to speak or own their own press. There were no credentials required to affirm that you were a government approved member of the press. You just published.
Despite the fact that news reached very few colonists, the framers realized that a free press would allow the public to share news, opinion, satire and humor without the worry of suppression. During the lead up to the Revolutionary War, newspapers were subject to the influence of the will of the majority. In order to publish they needed to be careful to present the biased point of view to those who held power in their town, or they would be subject to harassment – or embargo.
Last Sunday, Sen. Dick Durbin (D., IL) left an open-ended question during a Fox News Sunday interview. “The media shield law, which I am prepared to support, still leaves an unanswered question, which I have raised many times: What is a journalist today in 2013?” He continued. “We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection? We need to ask 21st century questions about a provision that was written over 200 years ago.”
Implementing a federal shield law, like the one Senator Durbin supports, is fraught with the possibility of harming the First Amendment rather than reaffirm it. Instead of protecting a free press, a federal shield law would only stifle free speech.
Shield laws are problematic in that they would – out of necessity – need to define who is a legitimate journalist. It would require the government to decide who would and who would not be afforded legal protection should an individual member of the press receive information deemed protected by a government entity.
If those who write for non-traditional publications, including Internet journals and social media websites, are excluded from protection, it would essentially delegitimize a segment of the press that has certainly established itself as the true government "watchdog" over the past two decades.
Writing a weekly column without the worry of government intervention is not unique to the United States, but it has been a foundation of our way of life since our inception. The Associated Press, James Rosen of Fox News and others have been subject to unethical and First Amendment-killing treatment by the Obama Administration and, more specifically, the Department of Justice's Attorney General Eric Holder.
There is more to come from investigations into this matter, but as the investigations continue let us be wary and alert for the phony calls for a federal shield law that would only work to limit the freedom of the press in this country.