Constitutional Law

Freedom of the Press Belongs to Everyone

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In my column today, I mention last month's 1st Circuit ruling (PDF) reaffirming that the First Amendment protects the right to record the public acts of public officials, including police officers. Notably, the appeals court, which was dealing with a case in which a bystander was charged with eavesdropping after he recorded an arrest he happened to witness on the Boston Common, made no distinction between "members of the press" and the average joe:

It is of no significance that the present case…involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press….

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

This point is frequently overlooked, since people tend to think that the press in "freedom of the press" refers to professional journalists employed by news organizations, as opposed to a technology of mass communication, which nowadays certainly includes blogs as well as newspapers and TV stations. The restrictions on political speech overturned by the Supreme Court in Citizens United, for example, included an exemption for media corporations, as if that took care of any First Amendment concerns.