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.”

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.

-- DanaDelger - 08 Apr 2009