Sen. Dick Durbin recently authored an op-ed calling for some sort of legislation to determine who qualifies for speech protections:
In Branzburg’s case, the Supreme Court ruled that there was no absolute privilege for journalists to refuse to reveal sources to a grand jury. The ruling did, however, seem to recognize a qualified privilege for journalists. Today, some federal courts recognize a qualified privilege for journalists, while others do not.
The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.
But who should be considered to be a journalist?
The answer to the Senator’s question is stunningly easy: anyone who practices journalism. If a person engages in an act of journalism, regardless of what they do for a living or how frequently they practice journalism, then regarding that act and any issues that arise surrounding it, they are a journalist.
He goes on to state:
For a few years now, a bill to protect journalists from revealing their sources and documents has been making its way through Congress. With no current federal statute recognizing a privilege for journalists, the so-called “media shield” law attempts to establish one.
Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. 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.
I think it is all well and good if Congress is simply attempting to “define…the constitutional and statutory protections … journalists should receive.” Obviously the Constitution contains a broad protection for free speech, one frequently violated, but at some point the exact implications of the right must be applied to particular circumstances. Its limits must be marked. The courts typically play a large role in defining the boundaries or scope of these rights, but they shouldn’t be the only participant in the process. Congress should be involved as well. I don’t know the particular details of the bill Sen. Durbin references, though I know it’s bipartisan and therefore immediately suspect in my mind as a conspiracy against the people, or whether it is a good or bad attempt to define the boundaries of journalistic protections, and the courts will continue to be there to weigh in if they should be unconstitutionally narrow. But it’s better if our legislative body do the actual legislating, rather than the judiciary.
But it is by no means necessary to reserve the rights of journalists to a privileged class. The very description of the idea leaves a sour taste. Such power in the hands of politicians to decide who deserves the full slate of journalistic rights would render ineffective the most powerful purpose for having a free and independent press: keeping the political class in check.
Sen. Durbin counters with this:
To those who feel politicians shouldn’t define who a journalist is, I’d remind them that they likely live in one of the 49 states, like Illinois, where elected officials have already made that decision.
Even if this is true, it’s no argue for federal legislation. At least with 49 different definitions there is a chance that one or more doesn’t suck. And there is recourse for those in states with bad definitions that would not be available if the same happens at the federal level.
It’s important to remember that the Constitution is not a broad grant of government authority with a few particular carve-outs. It is the opposite – a narrow and particular grant of authority for government to act in the preservation of rights. The First Amendment really ought not even have been necessary as government has no expressly granted authority to violate the rights of speech or the press, which was an argument made at the time against the inclusion of the Bill of Rights. Its existence has been wrongly interpreted over the years to mean that anything not expressly protected is fair game, and now Sen. Durbin is looking to chip away at even those limited protection by defining down nature of the press. Don’t let him do it.