|
MahaAtalFirstPaper 13 - 09 Apr 2009 - Main.TheodoreSmith
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | On anarchism. There are two ways to go forward if, as the tech-evangelists say, Speech/Press is over as a division. One is to say "We are all Speech," and get rid of press conferences altogether. The other is to say "We are all Press," and authorize everyone to show up at the White House looking for a press pass. Both sound to me like routes that would hardly help the functioning of the State; to the extent that my understanding of anarchism is resistance to the State as a coercive authority, celebrating these outcomes strikes me as an anarchist reaction. Most journalists, on the other hand, think of the Press as an institution that critiques and scrutinizes individuals in power for the ultimate benefit of the State and the political system. That's part of the professional code you imbibe at any J-school: anti-corruption, but not anti-authoritarian.
If the Bill of Rights were a governing document by itself, it would be pretty anarchist, but it's not. It's 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.
\ No newline at end of file | |
>
> | -- MahaAtal
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 |
|
|
MahaAtalFirstPaper 12 - 09 Apr 2009 - Main.DanaDelger
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | Ted has already addressed at least some of what I planned to say, but there’s a bit more I’d like to address. | |
<
< | First, I want to say I’m not entirely unsympathetic when you say that you are “trying to preserve and protect [a certain] set of [journalistic] practices.” I do, in fact, have at least some appreciation for the journalistic values you espouse, but I simply do not believe that the First Amendment should be the mechanism you shanghai to protect them. When you note that “There is different information and different analysis that emerges when I go in search of information as a reporter than when I do so as a citizen-blogger,” you miss the point--- the law has literally no relation to the personal difference you experience when you work as a “blogger” or a “reporter.” This is what Ted is pointing out when he notes that there is no “legal responsibility to balance the legal privileges given to the press under US law.” You may say there is a difference between being a reporter or being a blogger, and perhaps there is, but this is a norm that can and should be enforced either informally or through journalistic education which indoctrinates such values in its students (or as Ted also notes, perhaps through other means, like the distribution of press passes). The Bill of Rights, on the other hand, is decidedly unsuited to create and enforce a system that is “inherently unequal.” | >
> | First, I want to say I’m not entirely unsympathetic when you say that you are “trying to preserve and protect [a certain] set of [journalistic] practices.” I do, in fact, have at least some appreciation for the journalistic values you espouse, but I simply do not believe that the First Amendment should be the mechanism you shanghai to protect them. When you note that “[t]here is different information and different analysis that emerges when I go in search of information as a reporter than when I do so as a citizen-blogger,” you miss the point--- the law has literally no relation to the personal difference you experience when you work as a “blogger” or a “reporter.” This is what Ted is pointing out when he notes that there is no “legal responsibility to balance the legal privileges given to the press under US law.” You may say there is a difference between being a reporter and being a blogger, and perhaps there is, but this is a norm that can and should be enforced either informally, via social systems and pressures, or formally through journalistic education which indoctrinates such values in its students. You might also enforce this as Ted also notes through other means, like the distribution of press passes. The Bill of Rights, on the other hand, is decidedly unsuited to create and enforce a system that is “inherently unequal.” | | | I also want to address this point: “[W]hen the Constitution was written, the Press was the physical printing press. But we've long abandoned the idea of literal interpretations. As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content.” First, and perhaps least importantly, as to your contention that “we’ve long abandoned literal interpretation,” there are a few Justices on our Supreme Court you might like to meet--- namely Scalia and Thomas. I realize from your response that you aren’t a law student, but if you were, you would know (probably in most instances to your unending chagrin) that strict originalism and literal interpretation of text are at a high water mark of their influence on our Judiciary, both in the Supreme Court and elsewhere. |
|
|
MahaAtalFirstPaper 11 - 09 Apr 2009 - Main.MahaAtal
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | Sure Jonathan, I think I was a little oblique in my earlier statement. I apologize. NYT v. Sullivan held that "actual malice" is required in a libel suit against a public figure; however, its holding only covered the situation in which the defendant was a member of the media. Lower courts have come out different ways on whether this protection applies equally to "nonmedia" defendants. The applicability of the New York Times malice standard to cases involving public-figure plaintiffs and nonmedia defendants has to my knowledge not been ruled on by the Supreme Court. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 779 (1986); Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
-- TheodoreSmith - 8 Apr 2009
\ No newline at end of file | |
>
> |
Ted--For the best explanation of how the professional code of conduct might work as a heuristic, and more generally for good counter-arguments to Rosen, I still recommend Nick Lemann. You suggest separating technological from non-technological questions, but at least in media circles, they aren't separate. Many citizen-bloggers make the argument that BECAUSE technology makes Speech and Press equal everyone should get those Press passes in order to produce their Speech content. To argue that some of them shouldn't get passes (which I believe), you have to untangle the question of what technology does to the Speech/Press line.
On anarchism. There are two ways to go forward if, as the tech-evangelists say, Speech/Press is over as a division. One is to say "We are all Speech," and get rid of press conferences altogether. The other is to say "We are all Press," and authorize everyone to show up at the White House looking for a press pass. Both sound to me like routes that would hardly help the functioning of the State; to the extent that my understanding of anarchism is resistance to the State as a coercive authority, celebrating these outcomes strikes me as an anarchist reaction. Most journalists, on the other hand, think of the Press as an institution that critiques and scrutinizes individuals in power for the ultimate benefit of the State and the political system. That's part of the professional code you imbibe at any J-school: anti-corruption, but not anti-authoritarian.
If the Bill of Rights were a governing document by itself, it would be pretty anarchist, but it's not. It's 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. |
|
|
MahaAtalFirstPaper 10 - 09 Apr 2009 - Main.DanaDelger
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | I also want to address this point: “[W]hen the Constitution was written, the Press was the physical printing press. But we've long abandoned the idea of literal interpretations. As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content.” First, and perhaps least importantly, as to your contention that “we’ve long abandoned literal interpretation,” there are a few Justices on our Supreme Court you might like to meet--- namely Scalia and Thomas. I realize from your response that you aren’t a law student, but if you were, you would know (probably in most instances to your unending chagrin) that strict originalism and literal interpretation of text are at a high water mark of their influence on our Judiciary, both in the Supreme Court and elsewhere. | |
<
< | More importantly, is this point: “As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content.” This is quite simply untrue. You may disagree with me normatively, but there is absolutely no evidence, historical or legal, that supports your position that the intent of the Free Press clause was to preserve the inequalities you propose. The Free Press clause was meant to ensure that the federal government was not able to circuitously silence men by silencing the machines they spoke by. The idea that the Bill of Rights is intended to “preserve” a distinction which didn’t even exist at the time it was written is just, to be blunt, absurd. Even if you were correct in your assertions more generally, Constitutional times have changed, and we now read the Bill of Rights in the context of the 14th Amendment which ensures that the no personas are denied the “equal protection of the laws,” including presumably, the most important protection of all. | >
> | More importantly, is this point: “As I understand it, the intent of the Free Press clause is to preserve the distinction between professionally produced content and amateur produced content.” This is quite simply untrue. You may disagree with me normatively, but there is absolutely no evidence, historical or legal, that supports your position that the intent of the Free Press clause was to preserve the inequalities you propose. The Free Press clause was meant to ensure that the federal government was not able to circuitously silence men by silencing the machines they spoke by. The idea that the Bill of Rights is intended to “preserve” a distinction which didn’t even exist at the time it was written is just, to be blunt, absurd. Even if you were correct in your assertions more generally, Constitutional times have changed, and we now read the Bill of Rights in the context of the 14th Amendment which ensures that the no persons are denied the “equal protection of the laws,” including presumably, the most important protection of all--- the freedom to speak, no matter who we are or what our "title" is. | | | -- DanaDelger - 08 Apr 2009 |
|
|
MahaAtalFirstPaper 9 - 09 Apr 2009 - Main.TheodoreSmith
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | I think I agree with Dana here. I understand Maha's intuition, but I don't think the arguments work as stated. | |
<
< | The "privileges and responsibilities" part of the argument makes some sense, insofar as there is arguably a journalistic professional standard; however, this is not a legal responsibility to balance the legal privileges given to the press under US law. I am no expert in libel, but I do know something about it, and Dana is absolutely right - the New York Times line of cases actually seem to extend privileges to the press that are not available to ordinary actors in liability context (although the law on press versus ordinary actors is not entirely settled). While Jonathan is right that libel is treated somewhat differently online (in the context of republishing other people's defamatory statements), this does not really address the point that Dana was making - that doesn't seem to be any consistent legal set of duties that balance the privileges the professional press have been afforded. | >
> | The "privileges and responsibilities" part of the argument makes some sense, insofar as there is arguably a journalistic professional standard; however, this is not a legal responsibility to balance the legal privileges given to the press under US law. I am no expert in libel, but I do know something about it, and Dana is absolutely right - the New York Times line of cases may be interpreted as actually extending privileges to the press that are not available to ordinary actors in a libel context (although the law on press versus ordinary actors is not entirely settled). While Jonathan is right that libel is treated somewhat differently online (in the context of republishing other people's defamatory statements), this does not really address the point that Dana was making - that there does not seem to be any consistent legal set of duties that balance the privileges the professional press have been afforded. | | | | |
<
< | If there is no legal trade-off, the argument has to be what you are arguing above: that the professional press's self enforced code of conduct is what justifies legal privilege (now that the physical limitations of publishing have eliminated the technological reasons for the institution). This might sound better intuitively, but using incumbent status or professional credentials as a proxy for determining who is a "real journalist" in the professional-code-of-conduct sense doesn't seem like a very reasonable heuristic to me. If you think it is, I think you need to better explain why this is the case (the Jay Rosen article that you cited points out some instances in which it doesn't work). | >
> | If there is no legal trade-off, the argument has to be as you state above: that the professional press's self enforced code of conduct is what justifies legal privilege (now that the internet has largely eliminated the technological reasons for the institution). This might sound better intuitively, but using incumbent status or professional credentials as a proxy for determining who is a "real journalist" in the professional-code-of-conduct sense doesn't seem like a very reasonable heuristic to me. If you think it is, I think you need to better explain why this is the case (the Jay Rosen article that you cited points out some instances in which it doesn't work). | | | | |
<
< | I don't think the Constitution argument works at all. You use the term anarchist, which (aside from its inflammatory appeal) has been used so many times by so many different people that it is not at all clear what it means in this context. At its core, anarchist generally means a system that attempts to minimize coercion (and therefore hierarchy) - in this sense, the Bill of Rights IS something of an anarchist text: it is delimiting zones of personal freedom in which the federal government cannot bring coercive force. I agree that the founders probably didn't intend to create a Barcelona style anarchist syndicate, but that is clearly not what the argument is about. | >
> | I don't think the Constitution argument works at all. You use the term anarchist, which (aside from its inflammatory appeal) has been used so many times by so many different people that it is not at all clear what it means in this context. At its core, anarchism generally refers to a system that attempts to minimize coercion (and therefore hierarchy) - in this sense, the Bill of Rights IS something of an anarchist text: it is delimiting zones of personal freedom in which the federal government cannot bring coercive force. I agree that the founders probably didn't intend to create a Barcelona style anarchist syndicate, but that is clearly not what the argument is about. | | | | |
<
< | Your interpretation of the constitution would seem to be much more radical: that the Bill of Rights is meant not to establish areas of (somewhat) inviolate personal rights, but rather to enshrine a hierarchical system of greater and lesser individual rights within the Constitution itself. To my mind, this seems exactly the opposite of how most people think about the Bill of Rights (allowing that the Constitution did establish this kind of system with regards to slavery). | >
> | Your interpretation of the constitution would seem to be much more radical: that the Bill of Rights is meant not to establish areas of (somewhat) inviolate personal rights, but rather to enshrine a hierarchical system of greater and lesser individual rights within the Constitution itself. To my mind, this seems exactly the opposite of what most people think of as the purpose of the Bill of Rights (allowing that the Constitution did bless this kind of system in the context of slavery). | | | | |
<
< | I think you would have more purchase if you had focused on something that was NOT affected by the change in technology, and that was still a valid reason for exclusion - press passes for instance. Physical access to public figures and events is still a scarce resource, and may still justify a professional elite... | >
> | I think your argument would have more purchase if you focused on something that was NOT affected by the change in technology and was still a valid reason for exclusion - press passes for instance. Physical access to public figures and events is still a scarce resource, and arguably could still justify a professional elite... | | | -- TheodoreSmith - 8 Apr 2009 | | | Ted: I apologize if I am not as familiar with this information, but what additional privileges do the NYT v. Sullivan cases extend to The Press, which are not extended to ordinary actors?
-- JonathanBonilla - 25 Mar 2009
\ No newline at end of file | |
>
> |
Sure Jonathan, I think I was a little oblique in my earlier statement. I apologize. NYT v. Sullivan held that "actual malice" is required in a libel suit against a public figure; however, its holding only covered the situation in which the defendant was a member of the media. Lower courts have come out different ways on whether this protection applies equally to "nonmedia" defendants. The applicability of the New York Times malice standard to cases involving public-figure plaintiffs and nonmedia defendants has to my knowledge not been ruled on by the Supreme Court. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 779 (1986); Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
-- TheodoreSmith - 8 Apr 2009 |
|
|