Amendment I of the Constitution (aka the First Amendment in the Bill of Rights):
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First off, it’s pretty obvious that every right listed in the Bill of Rights is for everybody.
1. No national law establishing national government-supported religion.
2. No national law prohibiting free exercise of religion.
3. No national law abridging freedom of speech.
4. No national law abridging freedom of the press.
5. No national law abridging the right of the people to assemble peaceably.
6. No national law abridging the right of the people to petition the government for redress of grievances.
Nowhere in there does it say “freedom of exercise of religion only for professional clerics and religionists,” or “freedom of speech only for professional orators,” or “freedom to assemble only for professional demonstrators.” So why do some people want us to assume that it’s “freedom of the press only for professional journalists”?
The First Amendment says that you can say what you want, and you can print what you want. Today’s “printing press” includes both electronic files for sale, and those made available for free on the Internet.
Freedom of the press is for everybody, not just for professional journalists.
However… in one Texas statute, the state of Texas currently defines “the press” [“electronic or print media”] as only including professional journalists. One’s rights to freedom of the press are tested along a sliding scale, where some people are “more press than thou” and apparently have more rights and freedoms than the rest of us. Unfortunately, this test would disqualify most of the press of the young United States, such as Benjamin Franklin and Peter Zenger.
One test is that one’s “primary business” is journalism.
Franklin and Zenger were professional printers. Newspapers were a sideline.
The Court of Appeals went with a multi-factor primary business balancing test for whether someone or some organization counts as Internet media. Let’s check it against Franklin and Zenger’s chances of getting their website or blog (had they had one) qualified as electronic media.
[(1)] the goods and services offered by the Internet author and the sources of the Internet author’s revenue;
Franklin and Zenger were primarily professional commercial printers. Franklin was best known for his Poor Richard’s Almanac, besides his work as scientist, inventor, and politician. Zenger made a fair amount of his cash printing the first math textbook in New York, and for printing political ballads (which the governor had condemned by a grand jury to be burned in public). He also printed a lot of sermons, copies of laws and legislative sessions, the autobiography of one Iosiah Quinby, and miscellaneous little books by locals. NO.
[(2)] the Internet author’s journalistic background, experience, and independence (inquiring whether the author is a journalist by trade, education, or experience; whether the author is a member of various journalistic organizations; and whether the author is reporting information on which he or she has a business, as opposed to news-reporting, interest);
Franklin’s training and experience was as a printer’s devil, and as a printer doing several printing product lines including newspapers, almanacs, art, etc. He also worked as a scientist, inventor, and politician. Franklin was not a member of any journalism trade organization. (And why would we have to pay dues to private organizations in order to have rights?) He frequently reported information which affected his business as a printer, scientist, inventor, or politician. NO.
Zenger was also trained as a printer’s devil (under William Bradford, New York City’s other commercial printer and newspaper editor), and all his work experience was as a professional commercial printer. He was briefly a partner with Bradford so probably helped with his newspaper. He was not a member of any journalism trade organization. (His paper, the New York Weekly Journal, was one of two newspapers in New York; the other one, the New York Weekly Gazette published by Bradford, was sometimes one foolscap sheet and sometimes as many as four pages long.)
Zenger’s editorial and reportorial staff consisted of all volunteers. They were educated merchants, landowners, and government workers who opposed the corrupt and tyrannical policies of the royal governor, William Cosby. Their names were Lewis Morris; Lewis Morris, Jr.; James Alexander; William Smith; and Cadwallader Colden. Alexander served as editor. None of them had journalism experience or were members of journalistic trade organizations. All of them were reporting on matters that directly affected their livelihoods. NO.
[(3)] the extent to which the Internet author has an established presence or reputation in traditional media;
Apparently Franklin and Zenger both get points for their imaginary website because they had non-professional-journalist newspapers. Of course, since the New York colony government hated Zenger, one supposes that a judge could legitimately rule that his traditional media reputation was that of a libellous scoundrel. (This test also says that a cub reporter automatically has fewer rights and freedoms than someone who’s been around for twenty years, and that famous people have more rights than the editor of the Podunktown Journal.) Zenger’s staff wrote anonymously and had no traditional media reputation. Franklin YES, Zenger YES MAYBE, Zenger staff NO.
[(4)] the character and content of the Internet author’s communications and range of reporting (inquiring about the primary purpose of the [I]nternet communication;
[(5)] whether the communication involves matters of public concern; and the breadth of its coverage);
Zenger and Franklin would meet these tests. YES. YES.
[(6)] the editorial process (inquiring whether journalists select the stories to be researched and published on the website, whether the selection of stories was driven by their newsworthiness or other factors; and whether journalists supervise the research and act as the primary authors or editors of the website content);
Franklin and Zenger didn’t count as journalists according to the Texas statute standards, so their news selection doesn’t count as journalist-driven, either. Franklin and Zenger’s newspapers were both party-driven, so they selected their stories based on politics as well as newsworthiness. (Of course, so do most journalists today, but they refuse to admit it.) Since Franklin and Zenger were mostly responsible for all the content themselves, and they don’t count as journalists, their supervision of research, authorship, and editing don’t count a bit. Zenger’s volunteer, inexperienced staff of excellent and clever writers were clearly not journalists, either. NO.
and [(7)] the size, nature, and diversity of the readership and whether the readership relies on the author to obtain news.]
Philadelphia was a pretty decent-sized city in Franklin’s day, but New York was still a small though lucrative port town when Zenger’s trial took place. Most people in Philadelphia and New York were white Europeans. Most of their readership read all the available newspapers, and relied on word of mouth for news as well as newspapers. (And seriously, is there any site or network or newspaper that anybody relies upon for all their news these days? Seriously?) Both papers were very popular, if it matters. Obviously, popular newspapers and websites shouldn’t count as having more rights and freedoms than weeny, unpopular ones. NO.
Two YES answers for both. One YES for Franklin, one YES MAYBE for Zenger, one NO for Zenger’s staff. Four NO answers for both.
It would seem that Franklin and Zenger’s theoretical websites would be deemed not to have enough credentialed journalists to count as real “electronic media” in Texas.
Instapundit filed as an amicus curiae. The world’s most popular newsblogger and pundit doesn’t count as “electronic media,” either.