Friday, March 11, 2005

U.S. Confidential: "Congress shall make no law ... abridging the freedom of speech, or of the press ..."

That's it. That's all the Constitution says about the regulation of journalism and free expression (except for the 14th Amendment's placing state governments under the same restrictions). Within those few words comes a complex legal puzzle about the rights of journalists and even who qualifies to be called a journalist.

You'll notice the Constitution nowhere says, "Congress shall make no law ... forcing reporters to rat out their sources." But that's where the shades of gray come in. Requiring reporters to testify in court about a story they covered can be used to intimidate journalists, possibly restricting them from doing their jobs freely. But then a reporter may get exclusive information that's vital to a case, and withholding it could deprive a defendant from adequate justice during a trial.

I'll let others haggle over that issue. But I can't stand by and watch professional journalists claim special rights that nobody else has. Simply put, if a professional journalist believes he or she should be shielded from a subpoena, then any citizen -- including bloggers -- should enjoy the same privilege if that person is acting in a role of disseminating the information in question to the public.

The entire point of the Bill of Rights, especially the First Amendment, was to give a big "up yours" to the restrictions the British government put on its subjects. Among the ways Britain cracked down on the media was to grant licenses to press operators. Without a license, you couldn't operate a press. And if the government didn't like what you were printing, you lost your license (yes, it's exactly like what the FCC does with broadcast channels, but public airwaves are a tricky matter).

Selectively distributing legal rights is the same as giving a license to publish. If the government decides who is and is not legally a journalist, then the government can decide who does and does not benefit from the First Amendment. I've always said that a person with a pen, paper, and a Xerox machine should enjoy the same freedom of the press as The New York Times. Now, of course, the same should apply to the electronic press with the Internet and bloggers. If we determine such rights by prestige or circulation numbers, then the Bill of Rights has lost all meaning.