What Lindsey Graham Meant to Say About Bloggers (Maybe), and Why It's Still Wrong

Office of Lindsey GrahamOffice of Lindsey GrahamAs noted earlier today at Reason 24/7 and in the P.M. links, Sen. Lindsey Graham (R-S.C.) stumbled yesterday in describing an issue supposedly raised by the debate over how the government should treat journalists who use classified information in their work. "Who is a journalist is a question we need to ask ourselves," Graham said. "Is any blogger out there saying anything—do they deserve First Amendment protection? These are the issues of our times."

This afternoon Graham tweeted a correction: "Just to be clear, every blogger is entitled to constitutionally-protected Freedom of Speech." According to National Journal blogger Brian Fung, "What Graham really meant to ask was whether bloggers deserve the specific protections of the First Amendment that are granted to the press." That may indeed be what Graham meant, but it's still a misleading way of framing the question.

In the context of the First Amendment, "the press" refers to a technology, not a profession or an industry. "The press," like "speech," is a means of communication that all citizens have an equal right to use, regardless of their occupation. Today the press should be understood to mean any medium of mass communication, including the Internet. Freedom of the press in this sense is not a special privilege that belongs only to officially recognized members of the Fourth Estate. Although professional journalists might favor that interpretation, they do so at their own risk, since it invites government licensing (how else to distinguish between real and fake journalists?), which is obviously inimical to the values embodied in the First Amendment.

The notion of permission is also implicit in Fung's claim that the First Amendment "granted" people certain rights, which is not how the Framers understood the situation. Rather, the First Amendment (like the Second Amendment) recognized a pre-existing right. That is why it commands that "Congress shall make no law...abridging the freedom of speech, or of the press," referring to concepts that were widely understood at the time.

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  • Pro Libertate||

    This is correct. If I use a crayon to scribble out my opinion that we need a Censor to purge politicians on a daily basis ten times on sheets of toilet paper and hand them out to my neighbors, I've got ever bit of the legal protection the "press" gets.

    Ditto if I do the same on-line, via mail, etc., etc., etc. The freedom of the press is a subset of the freedom of speech.

    Incidentally, I don't know how "mass" it has to be to be press. I think it applies all the way down to just communicating with a few people.

  • General Butt Naked||

    If I use a crayon to scribble out my opinion...

    If?

  • Tman||

    ^^^^This.

    Can someone explain to me what's so fucking hard to understand about the first amendment?

  • Hyperion||

    Look now, that old document, it's really obsolete you know. We can't govern a country with 300 million people, in the 21st century, using that old thing.

    The rules, they have to be really complicated so that only we can understand them, and interpret them as we see fit.

  • ||

    "Can someone explain to me what's so fucking hard to understand about the first amendment?"

    It is self evident that I am correct and that people who disagree with me should not be allowed to be heard because they are wrong.

    Why is that difficult to understand?

  • Irish||

    Can someone explain to me what's so fucking hard to understand about the first amendment?

    Tony informed me that the goal of the first amendment isn't competition between ideas, it's to create a 'Democratic pool of good ideas' and then we get to vote on which ideas are the best. Therefore, whichever idea gets voted on is the best because otherwise people wouldn't have voted for it.

    When you're insane and don't know what you're talking about, it's easy to misunderstand simple words.

  • Hopfiend||

    Look Tman, the issue isn't really understanding it but finding ways around it that can still be reasoned (however unscrupulously) to not have violated it. Hope you understand the difference.

  • CatoTheElder||

    As usual, Lindsey Graham is a jackass.

    The applicability of the First Amendment's recognition of the "freedom of the press" was well defined by Blackstone to include ALL free men. Blackstone observed that, if freedom of the press does not extend to all free men, then all freedom of thought is subject to the prejudices of a single tyrant. Obviously, the applicability of this freedom has since been, as it should be, extended to all men and women. It is also clear that the scope of libelous conduct under most modern First Amendment interpretations is much, much narrower than Blackstone or even Madison would allow. Nonetheless, Blackstone and Madison et al would be aghast at Graham's reasoning that the freedom of the press should be accorded to some, but not others.

  • CatoTheElder||

    From Blackstone:

    The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, ... is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.

  • Paul.||

    is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.

    Jesus, CatoTheElder, shut the fuck up. You're handing progressives ideas on a silver platter. Just tell them where the money's hidden, why don't you?

  • CatoTheElder||

    They already know.

    It's how Lindsey Graham and the progressives intend to deprive Mohammad-drawing cartoonists, Koran-burning preachers, would-be Coptic film producers, and disrespectful bloggers of their freedom of expression.

  • CE||

    In other words, bloggers who dis the Administration can have their phone records jacked, just like real Associated Press reporters!

  • Caleb Turberville||

    OT: http://www.mediaite.com/tv/bas.....ite-house/

    According to Martin Bashir, "IRS" and "tax cuts" are right wing coded substitutes for the n-word.

  • ||

    Shit like that should get him fired.

  • Caleb Turberville||

    One would think that the name "Martin Bashir" would be an impediment to employment.

  • Pro Libertate||

    I dunno, he was okay on DS9.

  • Caleb Turberville||

    Maybe all of MSNBC's television personalities are just disgruntled employees trying to get out of their contracts by making fools of themselves on television...

    It worked for Olbermann.

  • Hyperion||

    He works for MSNBC. Shit like that is required material.

  • AdamJ||

    Between this clown, Al Sharpton, the (alleged) plagiarist mike barnacle, MSNBC really needs to raise their hiring standards.

  • Pro Libertate||

    These attempts to minimize the scandals are getting funnier and funnier.

  • Brian D||

    He's clearly not playing with a full deck, but the deck he has is full of race cards.

  • The Last American Hero||

    How many mana do they cost to play?

  • Generic Stranger||

    Obviously not much, since they never seem to go OOM.

  • Brian D||

    The Race card is a colorless permanent that costs zero mana if you have no white cards in your deck. Otherwise it cannot be played.

  • Emmerson Biggins||

    Also, I think it's indestructable.

  • Irish||

    I don't even understand this one. Normally MSNBC's madness at least follows some train of logic, deranged though it may be.

    This is just confusing.

  • CE||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Clearly "freedom of speech" means verbal communication and "freedom... of the press" means written communication. Both are protected from Congressional lawmaking abridgment or prohibition.

  • CE||

    But if you petition the government for a redress of grievances, make sure you get 25,000 people to sign your petition.

  • Caleb Turberville||

    Obviously, the Founders meant only speech spoken in a late 18th century American accent and only writing applied to parchment with quill pen.

  • Pro Libertate||

    Wearing a wig.

  • Caleb Turberville||

    Of course.

  • Aresen||

    The parchment or the quill pen?

  • Pro Libertate||

    You don't understand American jurisprudence at all, do you?

  • Aresen||

    Give me a good reason why I should.

  • Pro Libertate||

    Well, I'm playing Fallout 3 and, according to it, we annex Canada sometime before the nuclear war.

  • Caleb Turberville||

    My guess is that the dire situation necessitates dropping the pointless charade that it's its own separate country.

  • Pro Libertate||

    If some map maker moved the border up by accident a couple of millimeters, then we'd have 90% of the population, anyway.

  • Caleb Turberville||

    Isn't there some town on the Vermont/Quebec border that is bifurcated along the axis of its main street? Citizens literally have to emigrate to Canada in order to visit the public library.

  • Pro Libertate||

    These days, that means a passport and an anal probe, right?

    Seriously, I always thought it was very cool that the U.S. and Canada had this long, unfortified border, that citizens could cross very easily. That's all changed, because. . .I'm not really sure why. The Canadian menace of low-tipping? The American menace of bad culture? What?

  • ||

    That's all changed, because. . .I'm not really sure why.

    Fairness. If we're going to be dickish to Mexico we need to be dickish to Canada. Otherwise Mexico will get in a huff and flood the country with cocaine mules, or withhold them, depending on which you'd find more problematic.

  • Caleb Turberville||

  • Generic Stranger||

    Because otherwise terrorists.

    WHY DO YOU HATE 'MURRICA?!

  • Mickey Rat||

    You have it correct. Unfortunately, too many of our politicians seem to believe that "the press" means the profession of journalism. Of course, too many of our politicians are also mendacious bastards or high functioning morons.

  • Aresen||

    "Is any blogger out there saying anything—do they deserve First Amendment protection? These are the issues of our times."

    Why do they deserve fourth or fifth amendment protection?

    Why do they deserve thirteenth amendment protection?

  • Dweebston||

    Our founding fathers can't possibly have foreseen the technologies that would make possible the instruments of mass dissemination used by unlicensed and unregulated bloggers.

  • Pro Libertate||

    And corporations. They had no idea the horrors that would come. The horror.

  • Paul.||

    And words. Words have been invented that no one knew would be so powerful. Like calling someone a 'tard. No one foresaw that.

  • KPres||

    The East India Company was the biggest corporation that ever existed by a long shot, meaning they were no doubt aware of corporations. Yet scarce mention is made of their threat.

  • A Serious Man||

    The notion that our Founding Fathers wanted a legally recognized aristocracy of professional journalists to have extra special rights is pretty outrageous.

  • Sevo||

    "The freedom of the press is a subset of the freedom of speech."

    True, but further:
    Both of those related liberties are founded in the simple fact of human existence. They are both recognized in the US Constitution, but neither originates there; they are not 'granted' by that document.
    The point of the wording "Congress shall make no law.." is to make clear that the liberties recognized by the Constitution are not negotiable; they are specifically "unalienable".

  • Pro Libertate||

    It's a fundamental flaw in the mainstream view of civil liberties, that they somehow are "granted" by the government. That's exactly backwards.

  • Sevo||

    I think this comes from the a warped view of 'American Exceptionalism'; that the government is the source of that, rather than a reflection of it.
    I wonder if government schools don't have something to do with it; those paid by the government tend to favor it.

  • KPres||

    I think you're overanalyzing it. People want to crush their enemies, and silencing them is a good way to achieve that. If that means sacrificing foundational liberties, well, so be it they say. They'll worry about it coming back around on them when that happens.

  • Paul.||

    Natural rights vs. privileges. We have both.

    My right to free speach is the former, my right of access to low-cost abortions is the latter.

  • Wintermute||

    Excellent articulation of a very important concept, Jake.

  • Paul.||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Yep, we're all covered.

  • Hyperion||

    "Is any blogger out there saying anything—do they deserve First Amendment protection?

    Or a trial before we execute them with drones?

    Isn't that the real mistake that you made, the fact that you forgot to add that in?, Mr. Graham, you fucking traitorous piece of scum.

    Lindsey sure does have a really punchable face, no?

  • Jerryskids||

    And yet, try getting into a White House press conference or the House or Senate Press Gallery or for that matter your local school board meeting with a camera and a tape recorder. Graham probably does have it right that we need to have a conversation about this - I'm willing to bet that the majority of the public does believe that the Bill of Rights is a list of rights granted by government and that freedom of the press refers to the rights given to credentialed journalists. Some guy sitting in his living room in his pajamas writing wouldn't make the cut.

  • Hyperion||

    I'm willing to bet that the majority of the public does believe that the Bill of Rights

    I'm willing to bet that the majority of the public does not even know what the Bill of Rights, is.

    I can just see the interviews on the street.

    Reporter: Excuse me, sir, what do you think about the Bill of Rights, what does it guarantee?

    Street guy: Wha...

    Reporter: The Bill of Rights, what do you know about it?

    Street guy: Oh, yeah, that Bill of Rights. Well, that's what Obama, what he does, it guarantees that everyone get a free cell phone.

  • WomSom||

    Comeon man, roll that beautiful bean footage.

    www.WorldPrivacy.tk

  • Eduard van Haalen||

    I can't believe that these bought and paid for politicians, jsut by rolling with it, can make $2,000,000 on their laptops.

  • califernian||

    Statist gonna state.

  • AdamJ||

    I think Senator Graham meant that average bloggers can have all of their emails and files perused by the Justice Department without an ensuing shit-storm. This position is no better than the one that bloggers don't have free speech. Unfortunately, in practice he's right because the press won't care if its not one of their esteemed colleagues.

  • AdamJ||

    Also, the Constitution says "Congress shall make no law," not, "Eric Holder shan't not go through your email." So it's really a moot point you guys.

  • Canman||

    I remember when leftists used to whine about there being freedom of the press for anyone who owns a printing press.

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