Uh-oh, Sen. Dick Durbin of Illinois, best known for likening American servicemen to Nazis, is looking to limit your First Amendment rights, if not ours. "Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech," he writes. So far so good. "But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive."
That goes against America's entire constitutional tradition. In Lovell v. Griffin (1938), Chief Justice Charles Evans Hughes wrote for a unanimous Supreme Court: "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion."
In Branzburg v. Hayes (1972), Justice Byron White reiterated the point. The court was asked to hold that the First Amendment precluded the government from requiring a reporter to testify before a grand jury about information he had gathered from confidential sources. By a 5-4 vote, the justices said no. If such a privilege were established, White wrote, "sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."
Durbin now wants to establish such a privilege by statute, so his call for limiting freedom of the press is ostensibly designed to expand it. Obviously a generalized grant of immunity from the obligation to testify would be unworkable, so it is necessary for Durbin to define the special class of "journalists" who would receive it:
A journalist gathers information for a media outlet that disseminates the information through a broadly defined "medium"--including newspaper, nonfiction book, wire service, magazine, news website, television, radio or motion picture--for public use. This broad definition covers every form of legitimate journalism.
Oh dear, there's Todd Akin's favorite word! We guess Durbin would regard this column as "legitimate journalism," although we're not exactly sure why. Is it because we write for a "newspaper," or by that term does Durbin mean the physical object composed of paper and ink? If it's the latter, well, at least WSJ.com is a "news website."
But we also have an active presence on Twitter (where you should follow us if you don't already). Are our tweets legitimate? On this point Durbin is not entirely clear. He writes: "Not every blogger, tweeter or Facebook user is a 'journalist.' "
Durbin's definition of "journalist" is both too broad and too narrow. Any literate person, for example, could plausibly claim to be working on a "nonfiction book"--if nothing else, a memoir for a vanity publisher. On the other side, isn't Twitter a "news website"? That certainly describes the way we use it. What about Facebook? It even calls its procession of status updates the "newsfeed."
Justice White was right four decades ago, even if his references to pamphleteers, carbon paper, mimeographs and photocomposition now seem quaint. A law granting special privileges to the press effectively gives the government the power to license the press by deciding who qualifies.