As someone who makes a lavish living in the First Amendment industry ("Jeeves! More imitation Cheez-Wiz on this cracker!"), I might be expected to subscribe to the fashionable, enlightened, extend-your-pinky-to-drink-tea position on free speech issues. What position is that? That members of the Fourth Estate constitute a priestly class with special powers and privileges not held by the Great Unwashed.
The thinking goes that, in order to do their jobs well, journalists need special exemption from testifying before courts and grand juries - an obligation that holds for everybody else. The truth is, I don't think such an arrangement would be good for journalism, because it would turn the profession into a guild. I don't have much use for guilds.
Few professions love special badges and flip-open credential cases more than the reporting business. I think it goes back to Superman. While most of us wanted the super strength, X-ray vision and ability to fly, aspiring journalists actually yearned to wear their press passes in their hats like Clark Kent used to.
Currently, the ink-stained wretches are slavering over moves in Congress to pass federal journalist shield laws. This idea got an extra shove from prosecutor Patrick Fitzgerald's investigation of the alleged White House leaking of Valerie Plame's identity as a CIA operative. Some journalists didn't want to reveal their sources, claiming the Constitution gives them an absolute, adamantine and eternal right to protect their sources even if their sources committed a crime and the reporter in question made the commission of that crime possible.
Many putative First Amendment voluptuaries defend their position against the most absurd hypotheticals. My favorite example (as some readers may recall) comes from the columnist Michael Kinsley. A "very distinguished New York Times writer" once told Kinsley that "if the Times ballet critic, heading home after assessing the day's offering of plies and glissades, happens to witness a murder on her way to the Times Square subway, she has a First Amendment right and obligation to refuse to testify about what she saw." Why? Because she's a member of the priestly caste.
Other than the obvious problems - that the First Amendment is not a blanket protection to conceal crimes, that nowhere in case law or in the Constitution itself has such a right been established - there's a sticky public policy problem. Who gets to be a journalist? That question is why federal shield laws are the camel's nose under the tent of journalism licenses. If everybody can be a journalist simply by pecking away at a keyboard, then tens of millions of bloggers, newsletter writers and coupon-clipper weekly editors are journalists. If that's the case, then such a sweeping right is unenforceable and dangerous. If, on the other hand, only some people get to be called "journalists," then we've got the makings of a trade guild here.
There's been some interesting economic research in recent years on the role of guilds (i.e., professional associations, including some unions, that work with the state to require licensing for people seeking similar occupations). Morris Kleiner, a University of Minnesota economist and visiting scholar at the Minneapolis Federal Reserve, recently summarized some of his findings in The Wall Street Journal. Apparently, even though guilds don't lead to better or safer service, they're on the rise. Why? Well, one reason is that guilds have been very successful at persuading the public they're better for the consumer even though much of the time they're really better only for the members of the guild themselves. In states where a license is required to become, say, a hairdresser, salaries are higher by some 10 to 20 percent. This is partly because the licensing - the fees, the extra training, etc. - becomes a barrier to entry to others seeking employment. In states where strict state licensing isn't required, job growth is 20 percent higher.
The same dynamic would surely play out if elite journalists got their way. The resentment and vitriol aimed at bloggers and the "New Media" is palpable at journalism school symposiums and panel discussions. Is there any doubt that the key masters of any new state-sanctioned journalism guild would translate that animosity into higher wages for themselves and fewer opportunities for the untrained masses nipping at their heels?
This illuminates the fundamental problem with the "enlightened" media's fashionable pose on the First Amendment: It's anti-free speech for anyone without keys to the clubhouse. They want special rights for "real journalists." Well, special rights for some mean weaker rights for others. The editors of The New York Times rightly demand untrammeled opportunities to criticize politicians, but they want complex rules and regulations for everyone else - including other politicians! They think the First Amendment offers blanket protection to strippers "expressing" themselves, but citizens eager to criticize a candidate by taking out an ad can be muzzled if they want to take out that ad when it will be most effective - i.e., near election day.
The First Amendment was intended to keep political speech free; everything else was open to debate. Today, the leaders of the First Amendment industry see it exactly the other way around.