October 12, 2005

An exemplar of press freedom  

This proposed legislation has all kinds of implications, not just for bloggers and whether they are perceived as journalists, but for the whole project of American democracy and what it means to have a representative government:

A key reason some journalists oppose the popular federal shield proposal is fear that giving Congress the power to define who is and isn't a journalist could lead effectively to the licensing of journalists.

In other remarks about the legislation at IAPA's 61st General Assembly, Lugar acknowledged that the legislation could amount to a "privilege" for reporters over other Americans.

"I think, very frankly, you can make a case that this is a special boon for reporters, and certainly for their role in freedom of the press," he said. "At the end of the day what we will come out with says there is something privileged about being a reporter, and being able to report on something without being thrown into jail."

Maybe this understanding is naive, but I've always considered freedom of the press to be an institutional mechanism, one that allows the citizenry to know what it needs to know to choose who will represent it. The press has a key role in representative democracy not simply because it deals in information, but because that information is central to the proper function of the government. And all information is protected because the government can't be trusted to decide which information is relevant to the fundamental democratic function of choosing the government in the first place.

The various privileges afforded journalists now probably all boil down to two things: protection from retribution by the government, and access. The need for the former should be obvious if the purpose of the press is to make information available to the citizenry as described above, and it extends not just to journalists, but anyone who speaks, including me as I type this right now. The need for the latter is really an organizational question, a sort of democratic flow problem; since everybody can't have access to the White House press room, for instance, certain people are credentialled and have privileged access. In the past, this has also meant access to the means of publication, adn a whole profession and industry have developed as a result.

Now, access to publication is no longer an issue, or is only an issue insofar as universal access to the internet is an issue: Anyone can publish. There's still a physical flow problem for accessing certain kinds of information, so it still makes sense to have credentialled journalists who can go to the physical places where news is generated and report to the rest of us. But this is merely a convenience (ie the solution to a flow problem), and there's no reason that only the people with credentials can have protected sources; in fact it seems like such a restriction would have the potential to prevent information from reaching the citizenry, since information could only come to light if there were a credentialled journalist around.

The point of all this is just that if freedom of the press is really about getting information to the citizenry, then press protections shoudl apply equally to the citizenry itself. The exception to this is where there is an organizational problem, as there is now for questions of access to officials or sporting events or Gitmo or whatever the case may be, and as there has been in the past (but not now) for questions of access to publication. To the extent that this legislation limits the citizenry's ability to diretcly interact with its governement where that interaction would otherwise be feasible, it's an extremely dangerous bill.

Incidentally, I should mention that I don't think this bill is really necessary to protect people like Judith Miller, mainly because I am convinced by the argument here that since the leak in her case was not about illegal activity but rather was the illegal activity, she shouldn't be protected in the first place.

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