Dick Durbin: Congress Should Decide Who Qualifies for First Amendment Freedoms

In addition to trying to redefine the Second Amendment as not protecting anyone's right to bear arms, Illinois Senator Dick Durbin is now excited about how to redefine the First Amendment.

As with guns, Durbin is trying to limit constitutional freedoms so that they cannot be used by people of whom he disapproves. In an opinion essay published in the Chicago Sun Times last week, Durbin argued it was "time to say who's a real reporter," so that no one else can be given First Amendment protections.

"Is each of Twitter’s 141 million users in the United States a journalist? How about the 164 million Facebook users? What about bloggers, people posting on Instagram, or users of online message boards like Reddit?" Durbin asked.

Ostensibly, Durbin's motive seems to be about extending additional freedoms sometimes called "shield laws" which place some limitations on courts and police from compelling journalists to divulge anonymous sources.

While shield laws can offer some form of protection for independent journalism, they are likely to be unconstitutional since there is no history of jurisprudence giving individuals the absolute right to anonymity in their communications with journalists. Should such protections be struck down, the remainder of such laws: the government's official codification of who is a journalist would remain. Such a designation would be a harmful one as law professor and Instapundit blogger Glenn Reynolds argued in a column published yesterday by the New York Post (hat tip: Ed Driscoll)

Journalism is indeed an activity, not a profession, and though we often refer to institutionalized media as “the press,” we should remember that James Madison talked about freedom of the press as “freedom in the use of the press” — that is, the freedom to publish, not simply freedom for media organizations.

In Madison’s day, of course, the distinction wasn’t as significant as it became later, when newspaper publishing became an industrial activity. It was easy to be a pamphleteer in Madison’s time, and there was real influence in being such. [...]

The ability to publish inexpensively, and to reach potentially millions of people in seconds, has made it possible for people who’d never be able to — or even want to — be hired by the institutional press to nonetheless publish and influence the world, much like 18th century pamphleteers.

Over the past few years, a lot of big scoops have come from people other than the institutional press — from James O’Keefe’s exposés of ACORN and voter fraud, to Edward Snowden’s release of NSA secrets via Glenn Greenwald, who talking head David Gregory suggested is not a “real journalist.”

Indeed. For the government to formally decide that the First Amendment applies to some people and not to others would be a severe limitation on everyone's rights. We live in an era where anyone can now report the news and does. Just because some (or even most) of these amateur reporters are unpaid and may not follow conventional means of producing content does not mean that they should be stripped of their First Amendment privileges.

While he claims to be trying to protect free speech through a "shield law" for journalists, Dick Durbin is actually an opponent of people exercising their rights. Durbin may want his liberal journalist buddies to be protected from divulging their sources, he manifestly does not want anyone else to have this freedom. Durbin made that quite clear in his advocacy of the so-called DISCLOSE Act which seeks to make it a crime for political organizations not to reveal who their donors are.

Durbin has also been a persistent and caustic critic of 2010 Supreme Court case Citizens United v. FEC which found that the First Amendment's protections of free speech apply to both individuals and groups of individuals acting together.

Rabid leftists like Durbin despise the decision because it empowered people beyond just the left-dominated news media to excercise their right to political speech. As President Obama put it in his infamous scolding of the justices in 2010, the court had “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections.”

Those claims were utterly untrue in almost every way. Foreign businesses had nothing whatsoever to do with the decision and there is plenty of jurisprudence which affirms the rights of corporations (such as media corporations) to publish information they deem important.

Since 2010, anti-speech Democrats have continued their attacks on the First Amendment. Durbin himself went so far as to say that he supports a constitutional amendment to overrule the Supreme Court and place more restrictions on political speech.

“Since the Supreme Court’s decision on Citizens United, we have seen the rapid rise of super PACs and unprecedented influence buying by wealthy individuals seeking to advance their agendas,” Durbin said at a hearing he held last year where he called for a constitutional amendment to enshrine censorship.

Despite his professions of claiming to be for free speech, it is quite clear that Dick Durbin is not by any means an advocate for uncensored political discourse.

Matthew Sheffield
Matthew Sheffield
Matthew Sheffield, creator of NewsBusters and president of Dialog New Media, an internet marketing and design firm, left NewsBusters at the end of 2013