On September 12th, 2013, in a Judiciary Committee debate over a proposed journalist shield bill, Sen. Dianne Feinstein argued that First Amendment protections of the press do not extend to bloggers and student journalists. She offered an amendment to limit the bill’s protections to paid, credentialed journalists, attempting to create a class of journalist-elites, while excluding others from their constitutionally guaranteed right to free speech. Our nation’s founders communicated their idea through anonymously published handbills with no more credentials than a modern blogger. Feinstein forgets this, venomously deriding those with the impudence to write without corporate backing and a White House press pass.
“Should this privilege apply to anyone, to a 17 year old who drops out of high school, buys a website for five dollars, and starts a blog? Or, should it apply to journalists, to reporters who have bone fide credentials?”
When Feinstein offers this question with an answer in mind, she is not endowed with the authority to answer it. That power sits with the courts, and last week, Judge Marco Hernandez of the 9th Circuit Court ruled that 1st Amendment protections apply to all journalists, regardless of their training or the presence of “bone fide credentials”. The case in question, Obsidian Finance Group v. Cox, involves a finance blogger who accused the Obsidian Finance Group of engaging in tax fraud. The court ruled that even though the blogger, Crystal Cox, is an individual not connected to any larger media entity, because she wrote about an issue of public importance, her speech is no less protected than that of a salaried journalist. As a result, they applied the Gertz standard of negligence, an evolution of the earlier Sullivan standard, when assessing whether or not she could be sued for libel. This ruling holds both individual bloggers and corporate media entities to the same set of standards for libel, granting their speech equal 1st Amendment protection. While this case specifically referred to defamation, the Judge explicitly extends full 1st Amendment protections to all writers, without regard for the institutional affiliations, or lack thereof.
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable . . ."
This lack of distinction completely repudiates the claims made by Sen. Feinstein, who asserts that only professional journalists ought to be awarded the “privilege” of constitutional protection. While Feinstein’s camp advocates for the protection of a limited class of individuals known as “the press”, Judge Hernandez thankfully understands that the guarantee of freedom of the press refers to the technology in question, not any select group of individuals. Our country has little history of an institutional press, or, if there has been such a thing, its members have only been united by the technology they employ. All print licensing laws in the US have been eventually overturned. Anyone with a printing press has been free to use it, credentials or not. A glance at English history further helps to justify a technological interpretation of “the press”. In 1662, the Licensing of the Press Act made it a crime for anyone to operate an unlicensed printing press. Messengers of the King were also entrusted with the power to enter private residences to search for unlicensed printing presses. This restrictive, credentials based system of printing licensure was well known to those ratifying of the Bill of Rights. Given the English history of license based press restrictions, it would make sense that “freedom of the press” guaranteed the everyman a right to print this thoughts using the technology commonly employed by journalists. Sen. Feinstein would do well to learn this history, and ought to stop trying to give our government the powers of Charles II, especially when they fly in the face of all legal precedent.
Sen. Feinstein’s office did not respond to requests for comment.