Erosion of the First Amendment

By James Turbett

Imagine people receiving honoraria (fees for giving speeches) claiming that the freedom of speech provision of the first amendment was exclusively for their protection and that others weren’t protected by it. Or that police, hit men, and the military claimed that the second amendment applied to them alone. Or that freedom of assembly applied solely to professional rabble rousers. How about a suggestion from paid expert witnesses that the fifth amendment protection against self-incrimination did not apply to anyone but them?

Now consider the first amendment’s clause pertaining to freedom of the press. Suddenly absurdity is reality. People within the professions associated with established periodicals, radio and TV stations, and book publishers claim that they and only they enjoy certain protections under freedom of the press:

-They enjoy different treatment from everyone else under McCain-Feingold. Only they can print or broadcast information in support of or in opposition to a candidate shortly before an election.

-They sometimes receive an exemption from the requirement to testify in a trial if they say their testimony would reveal the identity of a source or violate an agreement of confidentiality -- even if the reporter is a witness to an element of a crime.

-They demand special access to documents not available to other citizens. Usually phrased “the public’s right to know,” what they really mean is their own right -- once they get possession of documents, they feel no obligation to divulge their contents to the public at large.

Until recently these assertions of privilege, ratified by legislatures and courts, have divided people into two classes -- the professional press and everyone else. But now two new news sources have blossomed: new kinds of professional ones such as talk radio, and very active unprofessional (meaning unpaid) ones such as weblogs, known as “blogs.”

Unsurprisingly the old professional news and opinion sources are not at all pleased about the competition or at the prospect of sharing their special privileges. So naturally they oppose the new forms of media being regarded as “the press.”

And this is the danger: The discrimination in privileges requires that the government determine who is entitled to those privileges, and it tempts legislatures, executive branch agencies, and courts to grant privileges on the basis of news and opinion content or campaign donations by news organizations.
With “campaign finance reform” more is now at stake, so the only way to counter the “incumbent express” in the last 60 days of a campaign is to position oneself as part of the press. Recognizing that to be the case, the NRA is buying a radio station, and viewpoint discrimination is evident in the response of the old media, which is to cry foul.

What should be done is to treat freedom of the press as the twin of freedom of speech, one written, one uttered, one perceived by the eyes, one perceived by the ears, and both equally applicable to all.

James Turbett is an Associate Editor of The Free Liberal. An Internal Revenue Service employee for 31 years, Jim has served as chairman of the Libertarian Party of Fairfax County and as president of the Fairfax County Taxpayer’s Alliance.