Precinct 333

Sunday, March 27, 2005

No "Reporter's Privilege" For Bloggers -- Or Reporters

David Shaw takes up one of the more vexing questions facing the blogosphere today – “Are bloggers entitled to the same constitutional protection as traditional print and broadcast journalists?”

His response? As one might expect from a card carrying member of old media, the answer is an emphatic NO!

BLOGGERS require no journalistic experience. All they need is computer access and the desire to blog. There are other, even important differences between bloggers and mainstream journalists, perhaps the most significant being that bloggers pride themselves on being part of an unmediated medium, giving their readers unfiltered information. And therein lies the problem.

Shaw then goes on to explain how the various and sundry levels of filtration his writing is required to pass through before percolating into print entitles him to protections that others, members of an unmediated medium, don’t deserve. Yes, he argues, folks like him in the mainstream media make mistakes, but there are consequences to those errors. We are members of a “solipsistic, self-aggrandizing journalist-wannabe genre” that doesn’t deserve the same sort of protections and deference that Shaw and his fellows believe is theirs by virtue of their special status as journalists.

And therein lies the problem with Shaw’s analysis. He believes that he and his fellow “journalists” are some sort of anointed high-priesthood, granted special exemption from the rules that apply to we mere mortals due to a single clause in the First Amendment. The problem is that he is fundamentally wrong. The Constitution confers upon journalists NO SPECIAL RIGHTS OR PRIVILEGES.

Consider the words of the First Amendment

“Congress shall make no law... abridging the freedom of speech, or of the press...."

Do you see some special status for journalists there? I don’t. I see no greater deference given to a reporter or an author that is not there for every person who engages in speech. It isn’t there, unless one wishes to engage in penumbra hunting among the emanations of shadows of the text of the Amendment. But a special status for the press is simply not there in the plain meaning of the text. Thus, any special status exists by statute, not by right. And if this special status exists by statute, it strikes me that it is a violation of the Equal Protection Clause of the Fourteenth Amendment, in that it creates an inequality in the protection of the laws. Thus, any special status conferred by law is constitutionally suspect.

So I will take my stand right here and right now – no, bloggers are not entitled to any special status reserved for journalists, or any exemptions carved out for them under the law.

But then again, neither are the journalists themselves.

Either the First Amendment provides a right to speak and publish freely to all of us, or it does not. Any other view is at odds with the spirit of the Constitution itself.


Creative Commons License
This work is licensed under a
Creative Commons License.