Do We Need Freedom of the Press? 

Eugene Volokh has an Op Ed in the New York Times discussing whether journalists have a constitutional right to keep sources confidential, and whether that right extends to bloggers.

Thirty-two years ago, the Supreme Court held that the First Amendment does not create a journalist's privilege: like anyone else, journalists must testify when ordered to do so. But Justice Lewis Powell, in a cryptic three-paragraph concurrence, wrote that there should be a modest privilege protecting journalists from unnecessary harassment by law enforcement. In such cases, he wrote, journalists should be allowed to claim the privilege, and courts should try to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."
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So the situation is a mess - and it's getting messier. Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.

The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

I've often times thought about this, but I don't think Eugene goes far enough. He asserts that anyone, even bloggers ought to have the Freedom of the Press extended to them. I'm beginning to think the exact opposite. Do we need Freedom of the Press at all any more? When you think about it, Freedom of the Press is really no different than Freedom of Speech. Throughout the years, the concept of Freedom of Speech has been extended a great deal to cover more than just the spoken word. It has been extended to cover what is generally known as Freedom of Expression. Isn't press just another form of expression? Isn't Freedom of the Press just a subset of Freedom of Speech then?

When the Constitution was originally drafted, the press was much different than it is today. The equipment and infrastructure needed to print and distribute a newspaper was much greater than it is today with the Internet. If a government body wanted to close down a newspaper, it realistically only had to go down to one place and lock the doors. Job done. Today if a government body wants to silence a "journalist", how would they do it? Anyone can write a blog entry, send an email to Glenn Reynolds and suddenly it can be seen by thousands of people. Because of the ease with which the press could be squashed back then, enumerating a separate Freedom of the Press made sense. I don't think it makes much sense any more.

Because of that need for infrastructure, being a journalist at the time of the Revolution carried a special distinction from being an ordinary citizen. But is that true today? In order to maintain a separate freedom of the press, with special rights and privileges, we need a way to tell a journalist apart from an ordinary citizen in a reliable, repeatable way. Right now that's just not possible. While one can get a degree in journalism, that is by no means a requirement to being a journalist. There are no special board exams to pass, nor the need for a state license. So if we can't tell a journalist from a normal citizen, how can we grant special privilege? We don't, and so we're left with having the Freedom of Speech. There is nothing wrong with this mind you. Bringing the press back down to the masses, to the normal people, is something that has been a long time coming.