I blipped Senator Lindsey Graham's doubt about the First Amendment rights of bloggers yesterday. Ken Santema gives Graham's Constitutional nincompoopery much fuller treatment in this post on bloggers, journalists, and freedom of the press.
This discussion happens in the context of Congressional leaders considering a media shield law that would allow journalists to better protect the identity of their confidential sources. The inescapable question Graham and other lawmakers must grapple is what is journalist in the 21st century?
As Santema explains, if we're looking at the question from a Constitutional perspective, the definition of "journalist" doesn't matter. The First Amendment grants freedom of the press to everyone, not just a special professional class:
The second statement [of the First Amendment] goes “Congress shall make no law abridging the freedom of the press”. Here is where Senator Graham is actually making a mistake. He seems to believe that ‘freedom of the press’ is extra protections for journalists. Wrong! Freedom of the press is referring to the natural right of American Citizens to use technology as a means to distribute their free speech. At the time the Bill of Rights was created the printing press was the technology used to spread information. Since the First Amendment was originally ratified the Supreme Court has included other technologies in the category of ‘the press’. Books, movies, and video games have all been found to be part of ‘the press’. Since bloggers and journalists use the same technologies to exercise their free speech, there is no difference between the two groups from a ‘freedom of press’ perspective.
Having reviewed both relevant sections of the First Amendment one thing is quite clear: from a Constitutionally protected standpoint there is no difference between a blogger and a journalist. Senator Graham implying that journalists should get extra protections from a ‘media shield law’ would arbitrarily try to create different ‘classes’ of free speech based upon occupation. That is a very unconstitutional concept [Ken Santema, "Bloggers, Journalists, the Press, and the First Amendment," SoDakLiberty, 2013.06.06].
If we base a media shield law on the First Amendment, then that shield should cover everyone exercising the freedom of the press.
Whatever the feds do, we should remember that South Dakota Senate Bill 119 becomes law on July 1. That law, aimed at preventing school districts from signing exclusive media contracts for coverage of their sports events, includes this definition of journalism:
"Journalism," the gathering, preparing, collecting, photographing, recording, streaming, broadcasting, writing, editing, reporting, or publishing of news or information that concerns matters of public interest for dissemination to the public, including on the internet;
As I noted last February, that definition means South Dakota courts must view bloggers as journalists. But no matter how South Dakota, Senator Graham, or anyone else defines journalism, Santema is right on: freedom of the press is not a professional privilege of reporters; it is a basic right of American citizens to use technology to make their voices heard.