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