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

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

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

I put this up here to extend a conversation I've been having on my own blog about what, exactly, we're trying to protect when we in media angst about saving the news industry from its impending apocalypse. What is journalism? My answer was somewhat half-baked, admittedly, and Dana hit on the main problems in her responses, but I want to push back in a few places.

If news executives don't get their act together, Dana and Eben are correct to allege there will be no such thing as "Press." But I have a little more faith in their ability, or at least some of them, to innovate out of the industry's current funk. More importantly, I see a social cost to having our news-of-record delivered as Speech rather than as Press. 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 (and for the record, I do both); there are questions I can ask, people I can access and most importantly, a mindset that I fall into in my professional mode that aren't there when I leave the newsroom. The best explanations of why Press is more than the sum of its participants are Nick Lemann's "Amateur Hour" and Jon Chait's "The Left's New Machine." I am trying to preserve and protect THAT set of practices, and to the extent that the old First Amendment is dead, I think it's what the new one should do. I am arguing for the intent and work of reporting as something that has to be demonstrated BEFORE you get the rights of Press--it is an earned, not an innate, privilege. So you can't just say, "Well, really, I was out looking for a natural disaster the day the tornado happened." Does that mean my model is inherently unequal because it privileges incumbents? Yes. Am I okay with that, even though I'm an aspirant still trying to break INTO the industry myself? Yes, because I think the institution of The Press matters more than my individual desire to become a journalist.

The fact that non-journalistic sites like FB have been subjected to libel lawsuits is part of the problem I'm addressing, so I'm not sure how referencing those undermines my argument that the law needs to be clarified to prevent that by making evident that these sites are Speech. The relative cost distinction between suing FB and suing the NYT will evaporate over time, so this issue will become more, not less, important.

Yes, Dana, when 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. At the time, this was a technological distinction; now that it's not, I think we need to reinterpret the clause to maintain the distinction within the digital universe, NOT, as I think Dana is suggesting to welcome the distinction's demise. That way lies anarchism, and I'm certain the Constitution is not, and shouldn't be tweaked into, an anarchist text.

Dana: You are correct that libel already may be applied to an individual who is not a part of the traditional "press". However, as this typically occurs in the context of an online publication, there already are additional federal safeguards: 47 USC §230. This law immunizes any user of an "interactive computer service" (broadly defined) from being considered a "publisher", for libel purposes, if this user did not create / develop the information. Barrett v. Rosenthal.

I think the lack of widespread lawsuits against facebook pages, then, is likely a result more of what Dana noted - harm / reward analysis. But they do happen: Dendrite v. Doe where a company sued to find out the identity of a person who posted negative comments about the company on a Yahoo! message board.

-- JonathanBonilla - 25 Mar 2009