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Molesting the First Amendment

Submitted by Tully on Wed, 10/17/2007 - 11:07am

“The Free Flow of Information Act of 2007” purports to defend the Bill of Rights, in particular the First Amendment freedom of the press. Compare and contrast the original language of HR 2102IH as originally written, with HR 2102EH as passed by the House.

As originally submitted:

(2) COVERED PERSON- The term `covered person' means a person engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

...(5) JOURNALISM- The term `journalism' means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

So far, so good. One can certainly debate the desirability or wisdom of legally protecting sources, and shielding from prosecution journalists who protect their sources. There are arguments going both ways, and they can quite reasonably be characterized as falling under the "freedom of the press" clause of the First Amendment. As Mike Pence (R-IN) is quoted doing by WaPo, one of the major lobbying forces for this bill:

"What's a conservative like me doing passing legislation that would help reporters?" Pence, a former talk-radio host, asked in remarks on the floor. "As a conservative who believes in limited government, I believe the only check on government in real time is the freedom of the press.

"Without the promise of confidentiality, many important conduits of information about our government will be shut down," he said, adding that the bill would "put a stitch in what I believe is a tear in the fabric of the Bill of Rights."

Too bad the language that passed the House does nothing for the Bill of Rights or the First Amendment. You see, in the process of moving through the House, the definition of a "covered person" changed a little. Note the emphasis:

(2) COVERED PERSON- The term `covered person' means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

You're not covered under this bill unless you're a regularly employed paid professional journalist! This completely removes the argument that this bill has anything at all to do with the First Amendment's "freedom of the press."

Why? Because the First Amendment's "freedom of the press" is a right of the people. You and I have just as much right to exercise "freedom of the press" as any seven-figure-salary MSM reporter. The House, in passing this bill, is not protecting the Bill of Rights at all. It's establishing a professional class privilege in the law, one not found in the Bill of Rights, one that exempts that professional class from the civic duties of citizenship. One that places them above the law in certain respects.

It's not a "freedom of the press" bill anymore. It's become a monopoly protection act that establishes an exclusively privileged class of "paid journalists." If it were to apply to "the press" as understood in the Constitution, that is to say everyone, that would be a different story. But it doesn't.

UPDATE: the current thread on David Hazinski's self-serving blather about "monitoring and regulating" us "non-professionals" is HERE, replete with fresh snark and additional linkage. Thanks to Glenn Reynolds and Mickey Kaus and Bill Quick for the linkage! Now give your Senators a shout and let them know what you think about it.

Worth recalling is that the

Worth recalling is that the First Amendment's protection of the freedom of the press has in mind the press of Gutenberg and Caxton, not the press of Lois Lane and Joseph Pulitzer. That is, it protects access to the means to disseminate ideas unhindered by a disapproving government (which is the principal reason it also applies to the internet), not reporters and newspapers, per se.

Also the press of Thomas

Also the press of Thomas Paine, who would not have qualified under this bill until well after the revolution.

By linking the definition to remuneration, it changes to a trade protection act, and the nature of the protection becomes one of commercial speech.

Franklin is spinning....

I'm holding back on what I've read Franklin thought about the subject and he helped proof-read Common Sense...LOL

This doesn't look good.

The devil as always, makes his house in the details, and apparently he has moving some things around behind the scenes. The argument implied in this change reminds of the same hubristic argument Bill Keller made a while back, during the controversy of the NYT leaking the SWIFT terrorist banking story.

"In the world you will find tribulation, but be of good cheer, for I have overcome the world."

John 16:33

Yes, this looks like bait and switch

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The First Amendment seems to be addressing the rights of the people. In no case does it refer to a right that is held by an exclusive class, certainly not one based on criteria of employment. Individual bloggers beware!

Whatever the Founding Fathers intentions were, the weight of their writing shows that government was not remotely imagined as an instrument in protecting a professional class of information dispensers at the exclusion of parents, doctors, engineers, lawyers or even Free Masons. Sometimes a group published once a month, or a book or two a year. The original concept of the press was to provide a public venue for the expression of the people's opinions and a sharing of information gathering. Sedition was still sedition, in both the poor and rich man?s press. I believe the intention of the framers are important in determining new applications for Constitutional law as novel situations and technology increase the playing field. Here the new adjustment seems to go against the original intent. Won?t this Bill be found unconstitutional?

The House changes clearly changes the intent of the First Amendment as understood by reading the wealth of comments by those Founding fathers on the subject of the free press in America. In fact, it would be nice to see new interest in reexamining our modern fixes in light of the clear preference of the originalist principles. How many Americans know what the original intent was? Of course we?re still arguing the Second Amendment.

The second sin here is the effect of this change in light of the recent polls regarding the quality of content by those major media outlets served exclusively by this passage. As well as protecting the rights of the consolidation of skewered content by media giants, individuals who were formerly protected are exposed to restrictions on reporting and conveying information. The media is hyper-protected against government intrusion in regards to content when said content involves State Secrets, criminal activity, slanderous information, seditious reporting and outright treason which are not protected by the First Amendment.

As media gains an increasing share of political power unimagined in the Constitution, the very rights "of the people" are being stolen to further expand the protected and partisan impact of exclusive media corporations in framing, shaping, misdirecting, and mischaracterizing the flow of information we receive about the world. It was this established press that Franklin first put his quill against. The idea that only a paid journalist can enjoy the protection the First coveys, is an erosion of our Constitution and works against the very notion of informed debate because journalists of the established order have been letting the people down and should not be granted special status. An established elite cannot be allowed to construct/publish whatever ?news? they wish in partisan strategy involving national security and consider themselves protected. And without the people whose government the press is attacking, armed with their own press in the form of modern communications, the press has no check.. By this House measure, the American chapter of Al Jazeera enjoys more protection here than Stubborn Facts and other venues of the Free Press.

Quite correct.

"By this House measure, the American chapter of Al Jazeera enjoys more protection here than Stubborn Facts and other venues of the Free Press."

If I were prone to cynical paranoid conspiracies, I'd say that things went exactly as planned, but I know better.

Still a bad bill though, or rather, a once good bill that was corrupted by this measure.

"In the world you will find tribulation, but be of good cheer, for I have overcome the world."

John 16:33

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