Thinking Out Loud: A Real Threat to the ‘Free Flow” of the First Amendment

If you have never heard of the Free Flow of Information Act, you aren’t alone. Then again, if it passes you could be very alone, especially if you are not a member of the establishment press — if you are not a “covered journalist” engaged in “the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing of news.” In that case, be careful what you write, blog, post, or publish, because you could get in serious trouble with the government. Only if you have “substantially contributed, as an author, editor, photographer or producer, to a significant number of articles, stories, programs or publications,” will the First Amendment protection of free speech and freedom of the press apply to you.

This updated version of the various “shield laws” that have been proposed periodically would still protect freedom of the press for the “established media”— reporters, photographers, writers, producers for CBS, MSNBC, Fox, the Washington Post, New York Times, etc. — but if you are a member of “the new media” — if you comment on public policy and national affairs on Twitter, on Facebook, on a blog, or if you post pictures on Instagram or videos on YouTube — be careful what you put out there because you are probably not considered “a legitimate news gatherer.” As a result, it is possible that you could publish a story similar to one the New York Times published, and face repercussions that the Times does not.

President Obama is on board with this new law, as is Senator Chuck Schumer (D-NY) and Senator Dianne Feinstein (D-CA), who sees this legislation as a way to separate legitimate journalists from “hate websites and other persons not actually engaged in the pursuit of journalism.”

Leave aside the fact that most “legitimate” news outlets have a liberal bias to their coverage, which helps explain why President Obama and his Democratic allies want them to remain protected. Instead, focus on the very slippery slope this law would send us down. As Senator John Cronyn (R-TX) has noted, this bill is tantamount to “government licensing” of the media. The government will determine who represents “legitimate” media and who does not, and almost certainly that determination will be based on the government’s “perception” — meaning its pleasure or displeasure — of the way that news coverage is presented. Thus it’s a safe bet that the government will consider “legitimate” journalists to be those who tend to publish pro-government stories, and challenge the legitimacy of those who don’t.

That is censorship, plain and simple. Or as a recent government publication on government licensing says (no doubt inadvertently), “When a government asserts authority to determine who can and cannot cover the news, it claims a license to censor.”