The First Amendment doesn’t only belong to journalists.
Jason Chen is a newsman. Or is he?
That’s just one question raised by the raid on Mr. Chen’s home by the San Mateo County, Calif., Sheriff’s Office, which carted off some computers and other electronic equipment. The search warrant appears to be the result of an investigation into whether Mr. Chen broke the law when he bought an iPhone prototype that an Apple engineer left in a bar where he was celebrating his birthday.
Because Mr. Chen reported on the new iPhone for his website, Gizmodo.com, the seizure of his computers has renewed a heated debate about whether bloggers are real journalists. Traditionally, many in the mainstream press have disparaged bloggers, though in this case at least some press organizations—including the parent company that runs Mr. Chen’s blog—argue that he is a full-time journalist whose home is his newsroom. The irony is how few connect Mr. Chen’s First Amendment freedoms to those for corporations that were recently upheld in a landmark Supreme Court ruling.
The case was Citizens United v. Federal Election Commission. Citizens United is a nonprofit corporation that produced a documentary on Hillary Clinton. It sought to distribute the film via video-on-demand back when she was running in the Democratic presidential primaries. When a lower court agreed with the FEC that the McCain-Feingold restrictions applied to the Hillary film, the group appealed and won at the Supreme Court this past January.
Not long after, in his State of the Union Address, Barack Obama disparaged members of the Supreme Court sitting before him by accusing them of opening “the floodgates for special interests.” Many focused on the president’s rudeness. More troubling was his message: What President Obama was really saying is that the Wall Street Journal and ABC News and your hometown daily should be free to print or broadcast what they want during an election. But not organizations like Citizens United.
The High Court wisely rejected that logic. Writing for the majority, Justice Anthony Kennedy said that “The First Amendment protects speech and speaker, and the ideas that flow from each.” In other words, the government can’t restrict First Amendment rights based on the identity of the speaker.”
Steve Simpson, a lawyer for the Institute for Justice, a libertarian public interest law firm, puts it this way: “Once the government gets in the business of deciding who can speak based on identity, it will then necessarily be involved in deciding what viewpoints get heard.”
The classic view of the First Amendment holds all Americans are entitled to its rights by virtue of citizenship. These days, alas, too many journalists and politicians assume that a free press should mean special privileges for a designated class. The further we travel in this direction, the more the government will end up deciding which Americans qualify and which do not.
It’s not just Mr. Chen. Two weeks ago in New Jersey, a state appeals court ruled that a hockey mom who blogs is not a journalist for the purposes of protecting her sources. The woman was being sued for derogatory comments she posted on a message board about a company that supplies software for the porn industry. At the federal level, meanwhile, a “shield law” protecting journalists from revealing their sources remains bogged down in Congress as legislators are forced to define who is legitimately a journalist and who is not.
Mr. Simpson points to another irony: Legislation now being pushed by Sen. Chuck Schumer (D., N.Y.) to scale back the Supreme Court’s January decision would limit political speech for government contractors, for companies that owe TARP money, and for those that pass some threshold for foreign ownership.
It’s an interesting proposition. I wonder: How many among the press who favor these chains being wrapped around corporations have thought through the implications for news organizations? The implications will be especially interesting if Congress ever does get around to approving that bailout for failing newspapers that the president says he’s at least open to.
In Mr. Chen’s case, all this may be moot if his troubles really have to do with buying property that is considered stolen under California law. In its reporting on the case, Gizmodo has already admitted paying $5,000 for the iPhone prototype. If the criminal case comes down to stolen property, whether or not he is deemed a bona fide journalist may not make much difference.
The larger point is that the best guarantee of good, independent journalism has always been the willingness of reporters and editors and publishers to run with the truth, protect their sources, and accept the consequences—even jail, if it comes to that. In short, we’ll all be better served by a First Amendment that remains a fundamental right for all rather than a class privilege for some.
William McGurn, Wall Street Journal
Full article and photo: http://online.wsj.com/article/SB10001424052748704342604575222501056696836.html