Yesterday, Glenn Reynolds linked some comments by Senator Dick Durbin, who said he favors a “media shield law”…but isn’t sure if such a law should protect people who are bloggers and/or tweeters, rather than being employees of Associated Press, Fox News, etc.
“Are these people journalists and entitled to constitutional protection?, asked Durbin. “We need to ask 21st century questions about a provision that was written over 200 years ago.”
As it happened, last night I was reading Alexis de Tocqueville, who (as usual) has some relevant things to say:
In France the press combines a twofold centralization; almost all its power is centered in the same spot and, so to speak, in the same hands, for its organs are far from numerous. The influence upon a skeptical nation of a public press thus constituted must be almost unbounded. It is an enemy with whom a government may sign an occasional truce, but which it is difficult to resist for any length of time.
Neither of these kinds of centralization exists in America. The United States has no metropolis; the intelligence and the power of the people are disseminated through all the parts of this vast country, and instead of radiating from a common point they cross each other in every direction; the Americans have nowhere established any central direction of opinion, any more than of the conduct of affairs. This difference arises from local circumstances and not from human power; but it is owing to the laws of the Union that there are no licenses to be granted to printers, no securities demanded from editors, as in France, and no stamp duty, as in France and England. The consequence is that nothing is easier than to set up a newspaper, as a small number of subscribers suffices to defray the expenses.
Hence the number of periodical and semi-periodical publications in the United States is almost incredibly large. The most enlightened Americans attribute the little influence of the press to this excessive dissemination of its power; and it is an axiom of political science in that country that the only way to neutralize the effect of the public journals is to multiply their number…The governments of Europe seem to treat the press with the courtesy which the knights of old showed to their opponents; having found from their own experience that centralization is a powerful weapon, they have furnished their enemies with it in order doubtless to have more glory for overcoming them.
In America there is scarcely a hamlet that has not its newspaper. It may readily be imagined that neither discipline nor unity of action can be established among so many combatants, and each one consequently fights under his own standard. All the political journals of the United States are, indeed, arrayed on the side of the administration or against it; but they attack and defend it in a thousand different ways.
Durbin referred to the First Amendment as “a provision that was written over 200 years ago,” apparently implying that the passage of time makes it less relevant today. If he were better-educated and more intelligent, he would understand that the press environment of the Revolutionary era and the first half of the 1800s, marked by decentralization and low start-up costs, is more similar to today’s Internet-driven media environment–marked by the same factors–than either is to the era that was marked by a few huge quasi-monopolistic media organizations.
When the Founders referred to “freedom of the press,” what exactly did they mean? I think there is a very strong case to be made (see detailed legal analysis by Eugene Volokh) that they meant freedom of the printing press (and, implicitly, of its technological successors) rather than offering a grant of special privilege to entities within a particular industry. Indeed, what would a grant of special protection to a “press” industry have even meant in an age when any citizen could buy a simple printing press and immediately begin publishing pamphlets or newspapers, without any need for huge capital investments, AP wire feeds, dozens of employees, etc?
I agree with Glenn Reynolds that “We need protections for journalism, not journalists.” The idea of special civil-liberties protections only for a particular industry, with membership in that industry inevitably to be certified by the powers-that-be, is highly dangerous, and takes us back to an environment of licenses to be granted to printers, securities demanded from editors, as in France, and stamp duty, as in France and England.
I notice that the people who want to use “technology” as an excuse for the erosion of constitutional protections are generally people whose ignorance of technology is exceeded only by their ignorance of history.