By Marc Randazza.
South Carolina’s house bill 4702 seeks to create “The South Carolina Responsible Journalism Registry.” The bill sounds like a pretty good idea. Lets face it, there are a lot of terrible journalists out there. A lot of hacks who don’t deserve the name. When Sabrina Erdely made up the Rolling Stone story about gang rapes at a frat house at UVA, I called it “journalistic malpractice.” But, I spoke merely hyperbolically. Wouldn’t it be great to have a “reporter’s license” that you could lose if you committed grave transgressions like that?
If you’re nodding your head right now, slow down cowboy.
This seems to be another example of good intentions, but something I can’t see working in practice.
There was a time when the title “journalist” was reserved for those working for a known publication. Everybody knew who was a journalist and who was not. Those days are long gone. With the rise of the internet, everyone can potentially be a “journalist”. Any John Doe can easily launch a blog and within a few magical minutes call yourself a “journalist”. Sometimes, they might even be telling the truth.
When it comes to protections for the press and speech protections for the rest of us, the distinction between “journalist” and “just some kid with a blog” is really nonexistent.
When the courts have recently struggled to determine who is a journalist and who is not, the answer has largely been “doesn’t matter.” For example, the Ninth Circuit Court of Appeals looked at that question last year when Crystal Cox, the well-documented extortionist, claimed the title of “journalist.” (See interview with Marc Randazza on NPR here) Ultimately, the Ninth held, like every other court to look at the question, that it really doesn’t matter — that journalists and batshit crazy lunatics get the same First Amendment rights. Similarly, but not identically, an appellate court in Florida looked at one of its journalism protection laws, Fla. Stat. § 770.01 and whether a blogger could claim its protections as well. The court in Comins v. VanVoorhis determined, essentially, that journalism is a thing you do, no matter who you are. (More here)
I think that part of the reason the courts have come to such conclusions is that defining “who is a journalist” is really difficult. But, this law would presumably help cure that problem. Person A has a journalism license. Person B does not. A nice bright line.
But is that a good thing? It strikes me with a little fear.
The First Amendment cannot abide in giving the government the ability to decide who has a journalism license and who does not. If we do that, it is almost certain that someone will abuse that power in order to promote a political agenda rather than a pure “ethical journalism” agenda.
Everyone has an agenda. I’m not sure that I trust some government bureaucrat to have the keys to who has a journalism license and who doesn’t. When you take the high importance of the Free Press Clause and put the keys to it in the hand of a government agency, that can’t end well. Imagine it is January 2002 and a journalist writes sympathetically about Al Qaeda. Would they lose their journalism license? Probably. What about today? Someone writes critically about Black Lives Matter, and there’s an avalanche of letters from crybaby SJWs. Does that affect her license? Write a pro-Israel (or anti-Israel) piece, and do you think your journalism license wouldn’t be on the block, depending on who makes the decision?
Perhaps there is a way to license journalists, which would be compatible with a notion of a free press. If there is, I lack the imagination to picture it. I agree there is a small problem, but we have always had good journalists and bad journalists. The marketplace seems to have taken care of that sufficiently up until now. I’m not ready to solve the problem of bad journalists by giving the keys to the Free Press Clause to some government-blessed regulator.
UPDATE: DUH!
