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.

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).

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.

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).

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...

-- TheodoreSmith - 8 Apr 2009