The Volokh Conspiracy

I finally got around to reading Eugene's NY Times op-ed and the odd response to it by Terence Blacker in the Independent (see Eugene's post on this).

I am not an expert on the First Amendment (as Eugene is). But I found the Independent's argument unpersuasive and questionable in a way that suggests why people need to look beyond mainstream sources such as the Independent to figure out the merits and scope of any First Amendment prvilege.

Terence Blacker in the Independent:

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

What some people seem to forget is that "the press" is only a metaphor for journalism. By giving freedom of the press as well as freedom of speech, the probable "intent" of the framers of the First Amendment and their probable "public meaning" was to recognize the freedom to publish without prior restraint and with broad (though not absolute) protection against later suit or punishment. If I'm right, then the "press" phrase of the First Amendment doesn't give more rights to journalists than to any other profession or sort of people who publish. It provides protection for whoever uses a publishing press, not a protection for a profession, like journalism. (To the extent that any states deviate from this basic First Amendment approach by privileging journalists only, they are acting unwisely in my opinion and contrary to the idea of the First Amendment.)

If we can now publish online for marginal costs that approach zero, then we all share in that freedom of the press (i.e., the freedom to publish). It is the technology that leads to egalitarianism, not the first amendment theory, which in my opinion has always protected publishers, at least non-obscene ones.

Scott Burgess also has some comments.

Take Winston Churchill, perhaps the greatest public figure of the 20th century. A Winston Churchill, writing extensively in his bathtub (as he often did), should receive no more protection from the First Amendment than political or academic bloggers writing in their pajamas or in their bathrooms, as recent critics of blogs have pejoratively asserted.

Of course, Eugene and I are not Churchills, but then neither is Mr. Blacker.