Senator Durbin vs. The Constitution

US Senator Dick Durbin (D-IL) is starting to realize that maybe, in the 21st century, bloggers and Twitter users deserve the same level of First Amendment protection as other journalists. 

Unfortunately, the definition of “journalist” the Senator prefers misses the mark, revealing in the process his desire to control the information received by the public.

Part of the trouble Mr. Durbin runs into when he talks about these issues is the difference between free expression and defense of sources — the right not to incriminate someone else. Durbin contends that while some people should be able to keep their sources secret, others should not.

The media informs the public and holds government accountable. Journalists should have reasonable legal protections to do their important work. But not every blogger, tweeter or Facebook user is a “journalist.” While social media allows tens of millions of people to share information publicly, it does not entitle them to special legal protections to ignore requests for documents or information from grand juries, judges or other law enforcement personnel.

The arrogance of a government official declaring who is and who is not fit to inform the public is rather striking. In the era of the democratization of information, setting up a protected journalist class as distinct from ordinary citizens is everything that’s wrong with Washington elitism.

To declare that journalists should have “reasonable legal protections” leaves open on one hand the definition of reasonableness, and on the other hand denies those protections to other citizens. 

Durbin says that the media “holds government accountable,” but the major media in the US have been highly protective of the Obama administration and Mr. Durbin’s policy positions. The corporate media needs competition from amateurs; everyday citizen journalists with smart phones and a twitter account to keep them honest. 

By setting up protections for employees of the corporate media, Durbin is saying that the corporations themselves deserve greater First and Fifth Amendment protection than ordinary people.

And what does Durbin think is the definition of a journalist?

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 website, television, radio or motion picture — for public use. This broad definition covers every form of legitimate journalism.

Durbin’s definition misses the mark, in part because he attempts to make an exhaustive list of media, and also because of the arbitrary limitations he imposes within that list. He chooses media that are overwhelmingly filled by his political allies, leaving the impression that he wants to retain the unlevel playing field.

Technology changes too quickly to categorize certain media as journalism, and other media as not journalism.

The real trouble is trying to define “journalist” in the first place, when that really isn’t the question.  Just as not all people who write things for the public are journalists, on Mr. Durbin’s terms, not all journalists have sources to protect.  

The real question is, “What is a reporter?”

According to the Reporters Committee for Freedom of the Press, a reporter is:

A person who represents, at the time he is gathering information, that the information is being gathered for the purpose of disseminating it to the public.

As long as the source knows that the goal is making the information public, the method of transmission, professional status, size of audience, type of content, or frequency of publication should not matter. The source should be protected.

Whether someone is a “journalist” is irrelevant, since journalism is profession, not an activity. Yes, professional journalists are entitled to First and Fifth Amendment protection, but so is everyone else. 

The protection is not for the reporter. The protection is for the source.

Similarly, a “shield” law should apply to everyone equally, not just to professionals. Along with the Fifth Amendment protection against self-incrimination, no citizen, or at least no reporter as defined above, should be forced to identify the source of a piece of information, whether that source is a government agent or their own religious conscience. Listing a source can give credibility, but no one should be forced to do it.

There is no good way to make a distinction between a paid journalist and a volunteer one. Is someone who is just starting a media business an amateur, or just an unestablished professional?

Citizens should not have to prove to the government an attempt to profit, or having done so, before claiming the right not to incriminate sources or share information.

Durbin wants to separate people who work for “media outlets” from freelancers who post things on Facebook and Twitter. But that’s a distinction without a difference. Professional journalists often post their findings on social media. The source’s right not to self-incriminate should not depend on the medium a reporter uses to relay some piece of information the source provided.

Trying to separate social media posts from those on a “news website” is a fool’s errand. It can’t be done, and we wouldn’t like the results if it could be done.

Perhaps Mr. Durbin’s prejudice against new media is motivated by exchanges like this interview with Chicago-based blogger Rebelpundit.

Rebelpundit: There is a large contingent of Communist Party USA, anarchists, international socialist groups here today that you just spoke to…

Durbin: How do you know that?

Rebelpundit: Because I’ve filmed them all day, and you just spoke to them, so I’d like to ask about your participation, why you decided to come out today?

Durbin: Well let me just say something, because [pause] I believe in the Constitution. Do you believe in it?

Rebelpundit: Because you believe in the Constitution you decided to come out to a rally full of communists and socialists?

Durbin: And you know why?

Rebelpundit: Why?

Durbin: Because we have freedom of speech in America, and that’s why you can record this and not be arrested.

RebelPundit: You think I should be arrested?

Durbin: No, not at all, you have a right to your constitutional rights, and I do, too.

(Why was RebelPundit’s arrest even an issue? Durbin implied that, but for the law, the blogger would be hauled off to jail.)

Senator Durbin is correct that a federal shield law would lend clarity to reporters under federal subpoena. But the shield law Durbin will probably try to create would protect only the professional news media largely friendly to him, not amateurs or those with a small audience or niche topic. It would be far better simply to recognize that the First and Fifth Amendments protect not just our speech, but our silence as well.