Dick Durbin: Should Bloggers And Tweeters Be Shielded Like Journalists?

Loathsome Senator Dick Durbin (D-Il), who at one time compared the military members at Guantanamo Bay detention facility to Nazis, isn’t quite ready to call for a special council regarding the DOJ’s investigations into journalists, as he said during an appearance on Fox News Sunday. And

(Daily Caller) “But here is the bottom line – the media shield law, which I am prepared to support, and I know Sen. Graham supports, still leaves an unanswered question, which I have raised many times: What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection? We need to ask 21st century questions about a provision that was written over 200 years ago.”

It’s not up to Durbin and his cohorts to define who is and who isn’t covered by the 1st Amendment protections of the Press Clause, and Dick should note that it doesn’t says “journalist”, but “the Press”, which at the time meant any person who felt like publishing any news and/or opinions. Interestingly, Alexander Hamilton (and others) thought there was no need for the 1st Amendment to mention the press (it’s well worth reading the entire article)

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. (This argument lead to adopting the Ninth Amendment.)

There’s a big doubleshot, in that Hamilton saw that the government was given no power to restrict, but that there would be some who would seek to take advantage of the Press clause. Ironically, without that clause, there would be no way to cry out for civil rights, since the federal government ignores the 9th and 10th Amendments.

The purpose of both the speech and press clauses is not to be able to publish the dirty highlights of a Justin Bieber party or Lindsay Lohan’s latest run ins with the law and rehab, but to be able to publish material critical of the government. This grew out of the restrictive policies of the British government towards religion and the press

Freedom of speech and of the press served one purpose in America: To remove the fear of the common law doctrine of seditious libel so citizens could freely speak or publish without license their grievances against public policy or conduct of public officials. One of the distasteful things found under the common law was the government practice of criminalizing or shielding itself through requiring license to publish of any criticism it felt made people dissatisfied with their government or government established religion.

Seditious libel (or criminal libel as it was sometimes called) was generally defined as “the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.” (Stephen, History of the Criminal Law)

It’s not up to Dick Durbin and his cohorts to define who is covered by a shield law: they’re protected by the Constitution, and they have no power to define under the Constitution. One last quote from Benjamin Franklin

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

Freedom of the Press is an extension of Freedom of Speech, meant specifically for the written word. We see what happens when the government starts codifying speech, say, at the IRS.

Crossed at Pirate’s Cove. Follow me on Twitter @WilliamTeach.

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