By Jonah Goldberg
Thursday, June 06, 2013
In response to the acknowledged abuses of his own Justice
Department, President Obama has urged Sen. Chuck Schumer, D-N.Y., to
reintroduce legislation for a "journalist shield law." And in typical
Washington fashion, the proposed act would do nothing to prevent the abuses
that supposedly make the law so necessary.
We saw a similar response to the horrible Connecticut
school shootings last December -- a raft of laws that wouldn't have prevented
the tragedy in the first place. It seems that whenever government fails to do
what it is supposed to do with the laws already on the books, the answer is to
give the government even more power.
Ah, but proponents of journalist shield laws argue that
such regulations actually limit the power of government by protecting the First
Amendment rights of the press. But that begs the question. A journalist shield
law must define who is a journalist and who isn't.
On May 26, Sen. Dick Durbin, D-Ill., said on "Fox
News Sunday" that the proposed shield law "still leaves an unanswered
question. ... What is a journalist today, 2013? We know it's someone who works
for Fox or AP, but does it include a blogger? Does it include someone who's
tweeting? Are these people journalists and entitled to constitutional
protection?"
Part of the problem stems from Durbin's apparent
suggestion that the First Amendment protects only a free press. It also
protects free speech, free assembly, freedom of worship and the right to
petition the government for the redress of grievances. We all have these
rights. The Washington Post's Bob Woodward has no more rights than my dentist.
And this is what is wrong with the idea of a federal
shield law. One proposed version of the law says a "covered person"
is someone who "for financial gain or livelihood, is engaged in
journalism." In other words, a journalist is a professional. So, the
government gets to decide who's a "real" journalist. That's a
horrifying expansion in government authority.
Worse, many judges won't even go that far. For instance,
an Illinois judge ruled last year that the popular website TechnoBuffalo didn't
qualify for the same protections the state confers to "real"
journalists. Cook County (Ill.) Circuit Judge Michael Panter said, "The
content on TechnoBuffalo's website may inform viewers how to use certain
devices or offer sneak peeks of upcoming technology, but that does not qualify
the website as a 'news medium' or its bloggers as 'reporters.'"
So when this newspaper informs its readers about new
gadgets or gives sneak peeks at upcoming technologies, that is journalism. But
when a moneymaking website does the same thing, not so much.
In 2009, when the Free Flow of Information Act was last
under consideration, Durbin and Sen. Dianne Feinstein, D-Calif., pushed to have
bloggers and other second-class journalists stripped of protections, eliciting
outrage from the left and right. Their stated concern was that bad actors --
terrorists, fraudsters, publicists -- would claim status as journalists in
order to cause mischief and harm. Some critics, though, sniffed a haughty
bigotry against "citizen journalists."
Columnist Leonard Pitts captured this attitude well when
he proclaimed in 2010, "I do not believe in 'citizen journalism.' Yes, I
know that's heresy. ... Yet I remain convinced that, with exceptions, citizen
journalism is to journalism as pornography is to a Martin Scorsese film; while
they may employ similar tools -- i.e., camera, lighting -- they aspire to
different results."
Pitts' ire was aimed at figures such as James O'Keefe,
who has embarrassed a lot of liberal institutions -- Planned Parenthood,
National Public Radio and others -- with his hidden camera operations. With
remarkable brevity, Pitts managed to include nearly everything that is
mule-headed in this debate. "60 Minutes" became a journalistic icon
by using hidden cameras in stings. But when citizen journalists use the same
methods, it's akin to pornography. Why? Because the results aren't to Pitts'
liking.
When James Madison wrote the First Amendment, he
undoubtedly had in mind not just journalists but also the countless private,
often anonymous, pamphleteers who often went after those in power with hammers
and tongs. And that points to the heart of the matter. Journalism isn't a
priestly caste or professional guild with special rights. It is an activity we
all have a right to partake in. Whether it's a blogger with a virtual tip jar
exposing malfeasance or "60 Minutes" making fraudulent charges about
George W. Bush, there will always be good journalism and bad journalism.
It will undoubtedly be necessary from time to time for
the government to distinguish between the two. But those instances should be
exceedingly rare, and they should never hinge on who the government thinks is
qualified to be a journalist in the first place.
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