Should Bloggers Be Covered by the First Amendment?

Who is a journalist?

In America, where we don’t license journalists, that is not always a simple question. Lately, the issue has come up in a new light because of the claims made by people who post blogs (i.e.: web logs).

Bloggers came to prominence during the 2004 election, often criticizing or correcting the “mainstream media.” Recently, the first blogger in history was issued credentials to cover the White House. And just last month, a California judge was asked to decide whether bloggers who write about Apple computers can enjoy the legal protections of that state’s “shield laws.”

Not surprisingly, most bloggers insist that they are journalists, entitled to equal rights with older media. Others disagree, saying bloggers are not journalists by any stretch. Recently, for example, Los Angeles Times media critic David Shaw argued that bloggers should not be considered journalists because they have no experience, they have no editors, and they have no standards.

Who is to say?

One approach to an answer is historical. In fact, bloggers stand squarely in a long-standing journalistic tradition. In this country, their roots go back to the authors of the often-anonymous writings that helped to found America itself by encouraging the rebellion against Britain.

Beginning around 1760 and continuing at a quickening pace, the colonists began taking part in a great public argument -- about the rights of Englishmen, the nature of civil society, and the limits of power. What began as a trickle of protest grew into a torrent of polemic.

Hundreds upon hundreds of pamphlets were printed in the colonies between 1760 and 1776, providing the intellectual setting for the debate over independence. Those writings – and their authors – played a role that was at least as important as established newspapers in giving expression to the growing political crisis.

The pamphlets were crucial to the rebellion because they were cheap, because they presented provocative arguments, and because it was impossible for the royal authorities to find their authors and stop them.

The authors of the pamphlets were not professional writers, nor were they printers. They were lawyers, farmers, ministers, merchants, or – in some cases – men whose true identities are still unknown. It was a well-established practice in colonial times for writers to use pen names, even when writing on non-controversial subjects.

With the coming of conflict with England and the fear of reprisals by the authorities, most pamphleteers resorted to writing under a nom de plume such as Cato or Centinel – the “Wonkette” and “Instapundit” of the day.

They would use a sympathetic printer’s press under cover of night, then sneak the pamphlets out for distribution. As a result, the pamphleteer had one great advantage over the printer: he could state the boldest claims against the Crown and not have to fear any penalties. The pamphleteers amounted to the nation’s first version of an underground press, a guerilla counterpart to the established newspapers.

The greatest pamphleteer of the age, of course, was certainly Thomas Paine. He arrived in Philadelphia late in 1774. Already 37, Paine was not a terribly impressive figure (you might even call him a “slacker”). Born in England, he had failed in the family’s corset-making business and later got fired as a tax-collector. His first wife had died, and he was separated from his second one. Jobless and nearly penniless, he set sail for a new life in America. On the way, he fell ill and nearly died.

Then his life turned around. He began writing essays for the Pennsylvania Magazine. He met and became friends with several advocates of independence, including the prominent doctor Benjamin Rush and the visiting Massachusetts lawyer John Adams. After a few months, Paine left the magazine but continued writing. Soon, he wrote a pamphlet of his own.

Titled Common Sense, it appeared on Jan. 10, 1776, and it shook the world. The impact of that pamphlet, out of the hundreds then circulating, was unprecedented. Paine later estimated that some 150,000 copies were sold, so it was probably read by about half a million people – at a time when the entire colonial population was about 2 million.

Like most other pamphleteers, Paine wrote Common Sense anonymously, but his central idea was unmistakable. Paine embraced republicanism – the idea that people can govern themselves without a hereditary or religious central authority.

His first target was the monarchy itself. In Paine’s view, when stripped of all its ermine robes and gilded scepters, the monarchy consisted of naked power, plain and simple. In language that sounds a lot like ranting, Paine said the English crown could be traced to William the Conqueror, whom he dismissed as “a French bastard landing with an armed banditti.”

He went on to call for “an open and determined declaration for independence,” and he promised his readers that “the sun never shined on a cause of greater worth.” These were radical ideas, and Paine became a wanted man.

Common Sense and other pamphlets like it were precisely the kind of political journalism that Jefferson had in mind when he insisted on a constitutional amendment in 1790 to protect press freedom -- anonymous, highly opinionated writing from diverse, independent sources. In historical terms, today’s bloggers are much closer in spirit to the Revolutionary-era pamphleteers than today’s giant, conglomerate mainstream media. On those grounds, blogs deserve the full constitutional blessings that the First Amendment guarantees.

But that is not to say that bloggers have carte blanche. It is important to remember that the First Amendment is a limit on the government’s power to impose prior restraint – that is, to prevent ideas from reaching the public by shutting down a newspaper before publication. It has always left journalists open to consequences that might arise after publication – such as being sued for libel or being ordered by a judge to reveal a confidential source.

It is clear that bloggers enjoy First Amendment rights, which are strongest at protecting opinions. The First Amendment does not grant immunity for instance for libel, trespassing in pursuit of news, or the theft of trade secrets.

It is less clear that bloggers should be entitled to the protections of all the other laws that have been passed since the founding that affect journalists.

Consider, for example, the state and federal “shield laws,” which in general allow journalists to protect confidential sources, as in the Apple case. Many bloggers say they should be covered by those laws.

Here again, history offers a guide. Most laws protecting journalists are much newer than the First Amendment. They were passed in recent decades in order to protect and foster a specific activity called reporting.

What we think of as reporting – the pursuit, on a full-time basis, of verifiable facts and verbatim quotations – was not a significant part of journalism in the time of Jefferson and Paine. In fact, the practice of reporting began around 1833 in New York’s “penny papers” and gradually spread during the nineteenth century.

Nowadays, when we ask whether someone is a journalist, we may need to refine the question. We should ask: Is this the kind of journalist who presents analysis, commentary, or political rants? Or, is this the kind of journalist who offers the fruits of reporting? Or some of both? The issue is not the job title but the activity.

Anyone who engages in reporting – whether for newspapers, magazines, radio, television, or blogs – deserves equal protection under those laws, whether the news is delivered with a quill pen or a computer.