The Senate’s war on freedom of the press

Sam Smith

Although the corporate media – the least free segment of the country’s press – isn’t reporting it like this, the Senate Judiciary Committee’s definition of a journalist in its just passed law is a clear violation of the First Amendment, not simply because of the self-serving nature of the definition but because the amendment specifically says “Congress shall make no law ... abridging the freedom of speech, or of thepress.” which this proposed bill clearly does.

As Hot Air notes:

It still means that the government gets to define journalists in as narrow a sense as they like for the purposes of applying this shield. Reporters for newspapers and broadcast outlets would certainly be covered, but that certainty ebbs the farther one goes from that core. What about writers at online sites like Hot Air and Huffington Post? Probably covered. Red State and Firedoglake? Well … are they journalists or activists? If the government gets to define it, then probably the latter — and that’s going to be more true for less-commercial online sites. Will writers at those sites feel more or less free to run real reporting based on inside sources? Better yet, will the inside sources want to talk with writers whose shield is very questionable, or to reporters whose shield will be more substantial?

This is basically rent-seeking by the big players in the media market, a sham by the Senate, and an affront to the First Amendment. Any shield law should concern itself with process and not identification. The founders did not include the First Amendment in order to allow the government to decide who gets its protections. If the shield is an extension of the First Amendment, then it applies to everyone involved in journalistic efforts, or no one at all.

Bear in mind what inspired this law, namely the exposure of illegal activity by the government. In a just and democratic society, Julian Assange would get a Pulitzer Prize and the law's big backer, Diane Feinstein, would be expelled from the Senate.

The effort by the Senate committee is designed to conceal illegal activity by the White House and Congress. A free press has no higher responsibility than to expose that.

Besides, I’m not sure whether I am legally a journalist anymore. A 56 year career has come seriously into question because of some slimy legal gobbledygook compiled by some slimy legislators. The slime is not accidental; it’s there to help the government to continue to define life as it sees fit.

I won’t bore you with my details which you can find here, but I would think a publication thatback in the 1990s, for example, helped to expose NSA spying on Americans’ phone calls might qualify a journalism.

But then people like me are part of a tradition in American journalism with far more historical roots than CNN or the Murdoch chain.

The current discussion of who’s a journalist is basically about who gets freedom of the press protections of the Constitution. This argument makes as much sense as one about who is an artist or a musician. It’s an okay topic for bars and literary journals but not for the law. A journalist is someone who reports the news or writes about it. You don’t need a license or anyone’s approval and, if you do, it is a violation of the Constitution.

Adam Goodheart, of Civilization magazine, wrote in the 1990s:

Journalism didn’t truly become a respectable profession until after World War II, when political journalism came to be dominated by a few big newspapers, networks and news services. These outlets cultivated an impartiality that, in a market with few rivals, makes sense. They also cultivated the myth that the American press had always (with a few deplorable exceptions, of course) been a model of decorum. But it wasn’t this sort of press that the framers of the Bill of Rights set out to protect. It was, rather, a press that called Washington an incompetent, Adams a tyrant and Jefferson a fornicator. And it was that rambunctious sort of press that, in contrast to the more genteel European periodicals of the day, came to be seen as proof of America’s republican vitality.

Today’s diuretic discourse over journalistic definition largely reflects an attempt to justify the unjustifiable, namely the rapid decline of independent sources of information and the monopolization of the vaunted “market place of ideas.” In the end, the hated Internet and its blogs are a far better heir of Peter Zenger, Thomas Paine, Frederick Douglass, and Mark Twain than is the typical American daily or TV channel; and H.L. Mencken would infinitely prefer a drink with Matt Drudge than with Ted Koppel.

Of course, the senators could have asked the Second Court of Appeals that has ruled that First Amendment applies to “every sort of publication which affords a vehicle of information and opinion.”

Or they could have checked with the Freedom Forum, which funds the Newseum among other things:

The First Amendment gives the press the right to publish news, information and opinions without government interference. This also means people have the right to publish their own newspapers, newsletters, magazines, etc.

And what if the senators had actually looked into the history of a free press in America. They would have found stuff like this:

The National Gazette was a Democratic-Republican partisan newspaper that was first published on October 31, 1791. It was edited and published semiweekly by poet and printer Philip Freneau until October 23, 1793.

The National Gazette was founded at the urging of Republican leaders James Madison and Thomas Jefferson in order to counter the influence of the rival Federalist newspaper, the Gazette of the United States. Not unlike other papers of the era, the National Gazette centered around its fervent political content. The Gazette's political content was often written pseudonymously, and was directed against the Federalist Party. Many prominent Republicans contributed articles, often pseudonymously, including Madison and Jefferson.

Freneau's Gazette spent much of its time criticizing the policies of the Washington Administration. For example, the paper described Alexander Hamilton's financial policies in 1792 as "numerous evils...pregnant with every mischief," and described George Washington's sixty-first birthday celebration as "a forerunner of other monarchical vices," The Gazette's strident polemics and screeds against the Washington administration led President Washington to despise the Gazette, and to refer to its editor pejoratively as "that Rascal Freneau."

Would Diane Feinstein have allowed Thomas Jefferson and James Madison First Amendment protection or would she have dumped them in the same uncovered category as she does Matt Drudge and a “17 year old blogger?”

And would these anti-constitutional senators have also barred Benjamin Franklin from the category of journalist?

The Gazette soon became Franklin’s characteristic organ, which he freely used for satire, for the play of his wit, even for sheer excess of mischief or of fun. From the first he had a way of adapting his models to his own uses.

As time went on, Franklin depended less on his literary conventions, and more on his own native humor. In this there is a new spirit—not suggested to him by the fine breeding of Addison, or the bitter irony of Swift, or the stinging completeness of Pope. The brilliant little pieces Franklin wrote for his Pennsylvania Gazette have an imperishable place in American literature. It is nonetheless true that they belong to colonial journalism.

The idea that the journalist is engaged in a professional procedure like surgery or a lawsuit leads to little but tedium, distortion, and delusion. It is the product not of freedom of the press but of corporate monopolization of the media. Far better to risk imperfection than to have quality so carefully controlled that only banality and official truths are permitted, as the Senate committee would have it.