The Corner

There Ought To Be No Law

The First Amendment clearly states: 

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.

But the World’s Greatest Deliberative Body apparently thinks otherwise:

Journalists and bloggers who report news to the public will be protected from being forced to testify about their work under a media shield bill passed by a Senate committee Thursday.

But the new legal protections will not extend to the controversial online website Wikileaks and others whose principal work involves disclosing “primary-source documents . . . without authorization.”

Senate sponsors of the bill and a coalition of media groups that support it hailed Thursday’s bipartisan Senate Judiciary Committee vote as a breakthrough.

“We’re closer than we’ve ever been before to passing a strong and tough media shield bill,” Sen.Charles E. Schumer (D-N.Y.) said. “Thanks to important bipartisan compromises, we’ve put together a strong bill that balances the need for national security with that of a free press.”

As I’ve written elsewhere, under the guise of “protection,” the Permanent Bipartisan Fusion Party is moving toward its real goal of licensing journalists and creating an American version of Britain’s Official Secrets Act. The Senate bill has nothing to do with protecting journalists, and everything to do with the Government Class protecting itself from those who would expose its activities. Having successfully co-opted what used to be the national media — so much so that there is now a veritable revolving door between Washington and old-media institutions — Congress now seeks to shut down via exclusion all those who do not toe the party line. And if you don’t believe me, just ask Senator Dianne Feinstein:

The final hurdle for the Judiciary Committee was defining who is a journalist in the digital era.

Sen. Dianne Feinstein (D-Calif.) insisted on limiting the legal protection to “real reporters” and not, she said, a 17-year-old with his own website.

“I can’t support it if everyone who has a blog has a special privilege . . . or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there,” she said.

Feinstein introduced an amendment that defines a “covered journalist” as someone who gathers and reports news for “an entity or service that disseminates news and information.” The definition includes freelancers, part-timers and student journalists, and it permits a judge to go further and extend the protections to any “legitimate news-gathering activities.”

The weasel word is, of course, “legitimate,” so that would leave out Tom Paine and the other illegitimate rabble-rousers who fomented the American Revolution. But it doesn’t matter whether Feinstein wants to “go there” — the Framers have already been and gone; as the feminists like to say, “What part of ‘no’ don’t you understand?” A federal license, no matter what its guise, is simply a license to smooch, and any journalist who would trust Chuck Schumer’s good intentions shouldn’t be allowed to cover the local sewer board meeting. As I wrote a couple of months ago:

But that’s the price we pay for returning to a media world that the Founders themselves would very likely recognize: an opinionated, intellectual (and not-so-intellectual) free for all, from which — if you accept Milton’s proposition that truth emerges through the trying — we can begin to discern the outlines of reality. As the saying goes, people tend to believe what they read in the newspaper unless they happen to know something about the event or subject under discussion: then, not so much. But the truth (minus the inexpert witnesses known as journalists and the interested parties known as sources) is out there.

A license to print under the beneficent watchfulness of Washington, though, is simply a license to smooch the bums of the watchers. No wonder folks turn away from “Journalists” with revulsion, and turn to Twitter when something, you know, actually happens. They may be temporarily ignorant, but they’re not stupid.

By the way, the Wikileaks bugbear is, to mix a metaphor, a complete red herring. There are already laws on the books against exposing national-security secrets — laws that this administration has shown itself perfectly willing to employ against the very journalists it now solicitously seeks to “protect.” The Pentagon Papers case made it clear that the government cannot engage in prior restraint regarding publishing, but left open the question of punishment under the Espionage Act or other laws after the fact. 

Besides, on closer examination, the “shield law” won’t really provide much of a shield should one of the security agencies decide otherwise:

But the bill also makes it clear that the legal protection is not absolute. Federal officials still may “compel disclosure” from a journalist who has information that could stop or prevent crimes such as murder, kidnapping or child abduction or prevent “acts of terrorism” or significant harm to national security.

The Senate Judiciary Committee approved the bill on a 13-5 vote and sent it to the Senate floor. Its sponsors are optimistic it will win passage there, but its fate remains in doubt in the Republican-controlled House of Representatives.

I should hope so. Whatever one thinks of the merits of such a law, the fact remains that it is blatantly unconstitutional. No law means no law. But don’t take it from me, take it from John Milton, in his famous essay that formed the cornerstone of the Bill of Rights:

And how can a man teach with authority, which is the life of teaching, how can he be a doctor in his book as he ought to be, or else had better be silent, whenas all he teaches, all he delivers, is but under the tuition, under the correction of his patriarchal licenser, to blot or alter what precisely accords not with the hidebound humour which he calls his judgment? — when every acute reader, upon the first sight of a pedantic license, will be ready with these like words to ding the book a quoit’s distance from him . . .

A quoit’s distance isn’t nearly far enough to ding this wretched idea, when the First Amendment itself provides all the clarity the nation needs. 


Michael Walsh — Mr. Walsh is the author of the novels Hostile Intent and Early Warning and, writing as frequent NRO contributor David Kahane, Rules for Radical Conservatives.


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