When the feds tell you they want to protect your rights, watch out! In all likelihood, that means they plan to strip some of your rights away and expand their own power.
Case in point, a “shield law” for journalists currently the subject of congressional debate. The political class wants to protect journalists from requirements to reveal sources or documents. S.987 would “maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”
Sound good, right?
But consider this: in the process, Congress gets to define a “journalist.”
Last week, the Senate Judiciary Committee did just that, approving a federal definition of journalist 13-5. According to the feds, an employee, independent contractor or agent of “an entity or service that disseminates news and information” qualifies as a journalist. The definition would extend to student journalists and the language also allows a federal judge to declare a person a “covered journalist.”
This definition leaves bloggers and individuals writing or reporting on their own out of the loop. Unsurprisingly, organizations representing “professional” journalists support the measure. Nothing like defining your competition out of existence.
So, under the guise of protecting the rights of journalist, Congress essentially wants to narrowly define freedom of the press. Texas Senator Ted Cruz recognized the ploy.
“Essentially, as I understand this amendment, it protects what I would characterize as the ‘corporate media’…. But it leaves out citizen bloggers,” he told the Christian Science Monitor.
Sen. Dianne Feinstein (D-Calif.) admitted the amended language in the bill essentially separates “professional” journalists from everybody else.
“I’ve had longstanding concern that the language in the bill as introduced would grant a special privilege to people who aren’t really reporters at all, who have no professional qualifications whatsoever. The fundamental issue behind this amendment is – should this privilege apply to anyone – to a 17-year-old who drops out of high school, buys a website for $5 and starts a blog? Or should it apply to journalists, reporters who have bona fide credentials?”
Newsflash Dianne. It’s not up to you! The Constitution does not delegate the power to define journalism to Congress.
Displaying a similar streak of arrogance and constitutional ignorance, Sen. Sheldon Whitehouse (D-R.I.) defended the measure.
“All we’re doing is adding privilege to existing First Amendment rights, so there is, logically, zero First Amendment threat out of this,” he said.
Well Sheldon, the First Amendment specifically forbids Congress from making laws “abridging the freedom of speech, or of the press.” According to Bouvier’s Law Dictionary, abridge literally “signifies particularly the making of a declaration or count shorter, by taking or severing away some of the substance from it.” In other words, Congress cannot pass a law removing any substance from the right to free speech or freedom of the press. And “the press” did not mean “news organizations” in the founding era. According to UCLA law professor Eugene Volokh, it literally means the printing press. In other words, the technology to create the printed word. American Thinker writer Dan Smyth reviewed Volokh’s paper and summed up the broad meaning of “press” in the founding era.
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.
And of course, printing press would extend to modern technologies that serve the same purpose, such as the Internet.
Freedom of speech and freedom of the press link together. Essentially, freedom of the press protects the dissemination of “speech” via the press, and both apply to the people, not a select few picked out by Congress.
St. George Tucker wrote the first systematic commentary on the Constitution. He argued that the protecting the people’s right of free speech and freedom of the press was essential for keeping government restrained.
It being one of the great fundamental principles of the American governments, that the people are the sovereign, and those who administer the government their agents, and servants, not their kings and masters, it would have been a political solecism to have permitted the smallest restraint upon the right of the people to inquire into, censure, approve, punish or reward their agents according to their merit, or demerit. The constitution, therefore, secures to them the unlimited right to do this, either by speaking, writing, printing, or by any other mode of publishing, which they may think proper. This being the only mode by which the responsibility of the agents of the public can be secured, and practically enforced, the smallest infringement of the rights guaranteed by this article, must threaten the total subversion of the government. [Emphasis added]
So, Congress has no authority to define “journalist,” and it doesn’t even have the power to pass a “shield law.” The First Amendment already provides one. Clearly, federal power to compel those engaging in free speech through the press to disclose sources or documents would abridge that fundamental right.
This bill not only violates the First Amendment, but it assumes undelegated powers.
Sadly many will cheer the feds. After all, American love a federal liberty enforcement squad. But as we’ve seen time and again, allowing the feds to exercise powers to “protect” us always leads to a loss of liberty, and more raw power for the government. We don’t need their protection. We need more of Thomas Jefferson’s prescription.
“In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
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