Hey Maha- as Dana mentioned, I think one of the problems we are having here is that we are arguing about two different things. There is the normative issue of "would a world without distinctions between citizen and professional journalism be worse," and there is the legal issue of "is there, or can there be a legal/constitutional distinction between citizen and professional journalism." While some of us may disagree with you on the former question, I think it is the latter question that we (as law students) are really getting hung up on.

Normatively, you may be right that professional journalism is something we should preserve; it certainly seems as though there is a distinct role that it plays in the current structure of the state. Whether or not this role can be met by amateur "citizen journalists" on the internet is certainly a matter for debate - this is, to my understanding, what Nick Lemann was writing about in the article you cited.

What this does not do (and what Lemann's article does not do), is discuss how this distinction would actually play out legally. If you believe that there should be legal distinctions between professional and amateur journalists, you should probably be prepared to present a theory upon which this legal distinction can be based. If I am a judge, and an attorney wants to call you in to testify about a source, what should I look to in order to decide if the Branzburg compelling state interest test applies? (Shield laws themselves, it should be noted, are not constitutionally based, but are rather laws passed by the states.) Having answered this question, what justifies making this distinction/using this particular test?

Because the first amendment guarantees freedom of the press, the second question must be framed in terms of the constitution; you would have to make an argument that the constitution makes or supports the same distinction you are using. This is where I begin to have trouble - the bill of rights is certainly an amendment to the constitution; however, it addresses a very different set of issues from the body of the constitution itself. Just as one would not ordinarily look in the executive clause of the constitution to determine a power of congress, it is tough to argue that we should be looking at the bill of rights to determine the hierarchical structure of the press. If you can find any basis whatsoever for this argument, you are more of a scholar than I. Please understand that I am not arguing here with the normative argument that such a distinction would "help the functioning of the State." I just don't see any legal basis for the distinction in the rights granted by the constitution.

Also, you say "[the bill of rights is] a caveat attached to the Constitution to facilitate the imposition of a far more hierarchical and powerful State than the hapless governing structure that proceeded it." If you mean that the bill of rights was an attempt to make the structure of the constitution more palatable to congress, you may be able to argue for your proposition (though it was passed four years later, and I don't see how it really helps your point). If you mean that the bill of rights was an attempt to strengthen the federal state or establish some new system of press-hierarchy, then as Dana says, you are just wrong - there is, as far as I know, no evidence whatsoever to support this claim. The question you have to answer is how the phrase "or of the press," in the middle of a clause limiting the powers of congress, is meant to establish a hierarchical press. Certainly, the constitution has been interpreted in some unconventional ways over the years, but you have a tough road to hoe, and the normative argument that you think it would be better if it did will not get you there (although I think the normative paper would be a fine paper to write). As Dana said, the constitution just doesn't seem like the place for what you are proposing: I think it would be normatively better if the free speech clause guaranteed internet access to all, but I have roughly no prayer of convincing anyone that this is actually what the constitution says. If you wanted to say that states should pass shield laws making a professional/amateur distinction based on your normative argument, this might be a good paper to write - this would not, however, be a constitutional matter.

And again, regarding the "anarchism" claim: it doesn't seem to be doing anything other than giving you a rhetorically flashy retort. As you say, the constitution is not very anarchistic, but the bill of rights is (at least to some degree). Saying that giving press freedom to all is an "anarchist reaction" doesn't mean anything - allowing everyone free speech is an "anarchist reaction." Allowing everyone free religion is an "anarchist reaction." Other than the "ooh anarchism is bad" rhetorical play, it doesn't add anything to your argument.

The absurdity of giving press passes to everyone is exactly why I though you should focus on something like that when making your argument. Neither I nor I imagine Dana (at the risk of putting words in her mouth), think you should be constitutionally obligated to give press passes to every single person who has a blog... this is a straw man. Clearly, in this area, there is some difference. So nobody here is going to make the argument that technological ease of publishing and communication eliminates the need for discretion in the physical world - this is clearly a terrible argument. BUT, an equally terrible argument seems to me to be that scarcity in the physical world justifies an imposition of hierarchy in the digital world. It is absurd to imagine everyone with a news blog showing up at the president's press conference, but less absurd to imagine everyone publishing news on their blog having some claim to journalistic protections - the latter are not scarce resources (though clearly it would have an impact on the justice system).

Wow... long post. Sorry I wrote so much.

-- TheodoreSmith - 9 Apr 2009