When perceived attempts to bolster 1st amendment become cynical attempts to dismantle it

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On Monday, we got into the curious case of a U.S. District Attorney making clear that federal civil rights laws would not tolerate people denigrating the Islamic faith on social media. In wrapping up the post we asked the following question:

Is this loser Killian suggesting that people on social media and "just bloggers" are not afforded the same 1st amendment protections as traditional media outlets? It would seem to be that way to us.

Now, consider what New York Times executive editor, Jill Abramson, called the "criminalization" of news gathering in the wake of the Department of Justice's seizure of the phone records of 20 Associated Press reporters and those of Fox News reporter, James Rosen, in two separate leak investigations.


What this has led to is the resurrection of the medial shield law which would protect media organizations from investigation and prosecution for the disclosure of government secrets. We can't have an effective 4th estate and thus an effective constitutional republic if that 4th estate is worried they are going to be thrown in jail for merely doing their job, right? So, everything sounds good so far, yeah?


Here's where we hit the pause button, however, as with nearly every piece of proposed legislation in Washington D.C., there will be winners and there will be losers. What it's looking like more and more is our vaunted defenders of democracy are, via the media shield law, engaging in some good old fashion rent-seeking to not only protect themselves but to make exclusive their status on the whole question of freedom of the press and free speech.



Here's the Weekly Standard explaining things (as you are reading this, please keep in mind our good friend, U.S. District Attorney Bill Killian):

More than 50 news organizations (Reuters, Gannett, the New York Times, and so on) signed a letter protesting the AP subpoenas, and of course journalism guilds like the Society of Professional Journalists are using the subpoenas to agitate on behalf of the Free Flow of Information Act—and for the same reason guilds always lobby the government for special privileges. The act will go a long way toward establishing a government-sanctioned journalistic class. There will be, on the one hand, approved reporters who are immune to certain kinds of governmental inquiry, and, on the other hand, everyone else, those less exalted citizens who, faced with the same governmental inquiry, would just have to suck it up. The act is a classic restraint of trade, protecting favored journalists from the pressure of competitors who lack the proper credential.

We don’t doubt there are admirable libertarian impulses behind the shield law, too, if it is intended to encourage the exposure of illicit uses of government power. But like so many libertarian impulses, admirable or otherwise, this one ends up extending rather than restraining the reach of the state’s sweaty and thick-fingered hand. Any shield law must turn on definitions. Who’s a journalist? Well, says one version of the act, a journalist is “a person who, for financial gain or livelihood, is engaged in journalism.” Leave aside for the moment why anyone in his right mind would go into journalism “for financial gain.” The next question is, And what is journalism? It is “the gathering, preparing, collecting” etc. etc. “or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” These are definitions without practical meaning. They will be refined on the fly, applied willy-nilly, by either unelected judges or self-interested legislators.

Even better, it reminds us of the advance our technology has made since the day of the great A. J. Liebling, author of the famous aphorism, “Freedom of the press belongs to the man who owns one.” Now, of course, we all own one. Liebling’s press baron could be anyone with a laptop and a connection to the free Wi-Fi at his local Starbucks. From even so modest a perch a budding Lord Beaverbrook or Colonel McCormick can gather “news and information” on “matters of public interest” and disseminate it to a readership beyond Liebling’s wildest dreams. The Free Flow of Information Act reminds us that the free flow of information—the freedom of the press—the First Amendment itself—will thrive so long as the government doesn’t try to protect it.

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Imagine that: a federal registry of government-sanctioned reporters. Not sounding too free-speechy, now, is it? But it shouldn't be surprising as the poltical class in this country, comprised of Democrats and Republicans alike, are fully vested in and thus fully supportive of extending/expanding the status quo. Never make the mistake of thinking otherwise.


And with respect to Killian's not-so-veiled threats to sic the federal government on those who say nasty things about Muhammed on social media, he knows damn well he would not be able to say the same things regarding the main stream media with or without any media shield law.


So, it's happening already where you have free speech for some but not free speech for others and if you are reading this now, which you are, you don't need to be a rocket scientist to assume that bloggers and blogging would be in that latter category. But we've engaged in journalism here on this blog if you believe the practice of journalism involves the "gathering, preparing, collecting” and then publishing of information, etc., etc., ... The rent seekers, in the fourth estate and indeed the entirety of the political class of this country are more interested in defining free speech in terms of who is engaging in it rather than the existential being of the speech itself. Speech is, man.


This is reminiscent of the arguments made by those on the ideological losing end of the Citizen's United case. Corporations are not people so their massive spending on political causes/campaigns is not considered speech as per the 1st amendment is the argument we have heard. But are not corporations made up of multiple individuals? And even that misses the larger point of, it's not about corporations or people or labor unions... it's about the "speech", stupid? In the Citizen's United context, an attempt to curtail speech was being made, regardless of the source of that speech, thus it ran afoul of the 1st amendment.


As we intoned before, regardless of the media shield law, there is move afoot to, on one hand legitimize speech and thus, on the other hand, delegitimize political/free speech which is poisonous for a fully functioning constitutional republic. Needless to say, government-approved speech is not free speech in any sense or manner of the word.



Special shout-out to new followers: "Joe", "Stuart Spivey" and "Jennifer Schaffer"