Who Owns the First Amendment?

As Justice Kennedy’s majority opinion points out, the overturned law forbidding corporate expenditures had an exemption for media corporations. If it hadn’t had one, the government would have been allowed to pass a law, say, limiting the amount a corporation could spend putting out a newspaper, in order to “level the playing field” between newspapers of differing points of view. A Republican Congress, for example, could decide that The Washington Post is too influential compared with The Washington Times, and require The Post to cut its budget (a superfluous requirement these days, perhaps). Most journalists would have no trouble correctly finding that in this case, money is speech after all.

As Kennedy further notes, if the law hadn’t been overturned, courts would have had to decide what is and isn’t a media corporation. A conglomerate with a couple of radio stations? And who is and is not a journalist? Kennedy observes with unseemly relish,

With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.

Rub it in, why don’t you?

More to the point, even if you could successfully draw that line between journalists and everybody else, why should you? Journalists’ special pleading is one reason we are so unpopular.

A final example concerns that hoary subject: anonymous sources. Like FOIA, anonymous sources are vital to journalists’ task of monitoring the behavior of government and powerful private institutions. Many journalists believe passionately that a “journalist’s privilege”—like the privileges for spouses, ministers, lawyers, and so on—should protect them from having to reveal the identity of their sources in criminal trials and other circumstances where nonjournalists must talk or risk punishment. Many journalists, in fact, believe that such a right is already part of the First Amendment, if only judges would recognize it. The Supreme Court has turned down opportunities to recognize such a right (which would be a right not to speak, in contrast with the First Amendment’s usual concern with a right to speak), but most states have enacted “shield” laws allowing journalists to protect their sources to one degree or another.

You cannot deny the sincerity or seriousness of journalists on this issue. Many—most notably Judith Miller of The New York Times—have gone to jail rather than break a promise of anonymity to a source. But you also cannot deny the arrogance of the absolutism here. The question is not whether journalists should be forced to break promises to anonymous sources. The question is whether they should have made these promises in the first place, and whether sometimes they should be happy to break them. The whole saga (which also involved other journalists: Matthew Cooper of Time, the late Robert Novak, and so on) concerned the “outing” of a CIA agent, Valerie Plame. (It’s all coming back now. Right?) The CIA also has its secrets—legitimate secrets. Do the legitimate secrets of The New York Times always trump the legitimate secrets of the CIA? And why do reporters continue to owe protection to sources who turn out to be lying, or to be part of an official disinformation campaign rather than brave dissidents?

And does the press always get to decide whose secrets trump? What bothers me most about the cult of the source is the press’s insistence on its right to ignore due process of law and refuse to reveal sources even after the issue has been fully litigated. Fine: appeal it up to the Supreme Court if you want, but in a democracy with an (all but) uncorrupted judiciary, if you ultimately lose, you should obey the law as it is, not as you would like it to be. Especially if you are concurrently publishing editorials urging this course on the president of the United States (as The Times and other publications were doing about George W. Bush during Plamegate).

When the press demands or assumes special privileges, we are forced back to the question of who is the press, and to Justice Kennedy’s puckish point that the Internet is making this distinction harder. The Senate Judiciary Committee has passed a national shield law that is not absolutist. It lists various circumstances in which the reporter’s privilege will not be recognized, such as preventing “destruction of critical infrastructure.” And it defines a journalist with elegant simplicity as a person who has the intent to disseminate information to the public. This definition is good, though you have to wonder who would not qualify for the privilege under its terms. Federal courts may soon be flooded with witnesses who are bloggers from mymafia.com. And then there is the question of why any journalist who is also a citizen and a human being would even want to keep secret the identity of someone who is planning to destroy critical infrastructure.