By GLENN HARLAN REYNOLDS
Sen. Dick Durbin thinks it’s time for Congress to decide who’s a real reporter. In The Chicago Sun-Times last week, he wrote: “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.”
How do you decide who is a journalist? Essentially, he says, it’s someone who gets a paycheck from a media organization: “A journalist gathers information for a media outlet that disseminates the information through a broadly defined ‘medium’ — including newspaper, nonfiction book, wire service, magazine, news Web site, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.”
Does it really? Everyform?
Because, as I write this, most of the information I’m getting from Egypt is being tweeted and blogged by Egyptians and American expats in Egypt. The media organizations are usually hours behind.
Personally, I think a journalist is someone who’s doing journalism, whether they get paid for it or not.
And Durbin is a constitutional ignoramus if he thinks that when the Framers talked about freedom of the press, they were talking about freedom for the press as an institution.
Journalism is indeed an activity, not a profession, and though we often refer to institutionalized media as “the press,” we should remember that James Madison talked about freedom of the press as “freedom in the use of the press” — that is, the freedom to publish, not simply freedom for media organizations.
In Madison’s day, of course, the distinction wasn’t as significant as it became later, when newspaper publishing became an industrial activity. It was easy to be a pamphleteer in Madison’s time, and there was real influence in being such.
But that changed with the increase in efficiencies of scale that accompanied the industrial revolution, and “the press” in common parlance became not a tool of publication but a shorthand for those organizations large and wealthy enough to possess those tools, much as the motion-picture industry has come to be referred to as “the studios.”
Yet now technology has changed things up again; the tools of Internet publication are available to anyone, however modest his or her means. (There are even homeless bloggers; I’ve met one myself.)
The ability to publish inexpensively, and to reach potentially millions of people in seconds, has made it possible for people who’d never be able to — or even want to — be hired by the institutional press to nonetheless publish and influence the world, much like 18th century pamphleteers.
Over the past few years, a lot of big scoops have come from people other than the institutional press — from James O’Keefe’s exposés of ACORN and voter fraud, to Edward Snowden’s release of NSA secrets via Glenn Greenwald, who talking head David Gregory suggested is not a “real journalist.”
Durbin’s pontifications about who’s entitled to press freedom were uttered in the course of promoting a federal “shield law” that would allow those “real” journalists to conceal their sources. I oppose such laws in general, but to the extent that they exist, they should protect everyone who’s doing journalism, regardless of where their paycheck comes from.
I wouldn’t trust Durbin (or most of his Senate colleagues) to baby-sit my kid. I certainly don’t trust them to decide who counts as a “real” journalist — and, more importantly, who doesn’t.
Glenn Harlan Reynolds is a law professor at the University of Tennessee.