Thursday, September 19, 2013

I got yer privilege right here....

Making the world safe for democracy since 1776

Hasn't that horse already left the barn?

Jesus H. Christ on a 4000-euro claimer, I leave the country for a week and Dianne Fking Feinstein gets to redefine my profession?  Hey, Dianne, here's the thing on that First Amendment business. I get to define what you do for a living. And if I decide to define what you do for a living is to be a mewling apologist for the national-security community and a lapdog for the surveillance state, I get to do that, and I get to do it in a newspaper, or video, or on-line, or on a pamphlet stapled to a telephone pole outside your door, if I so choose. You get to sit there, collect your government salary, raise money from plutocrats, and shut...the...hell...up.
First, color me unimpressed that the State is going to define a "profession."  Even in the Great State of Texas, land of Free Enterprise and Entrepreneurship fer Ever-body!, we license barbers.  Yes, the persons with the sharp scissor who mess with your hair have to be licensed by the state to take money for that, whether they are "stylists" or just cut what comes out from under the bowl.

So simmer down, boy-o, government defines "professions" all over the place.

I myself am a lawyer only because the State of Texas says so, and issued me a license in that regard, a license it can revoke or suspend upon showing of cause.  We treat medical doctors the same way; and barbers, and a host of other licensed "professions."  Texas even "registers" interior designers. (!) So again, simmer down.

On the other hand, if we don't define "journalist" in some way, then David Miranda becomes a journalist just by sleeping under the same roof with Glenn Greenwald, and Glenn Greenwald becomes a journalist just because Edward Snowden called him first.

Of course, there's more to this matter than simply defining the term "journalist" for the purposes of the law:

This isn't a law to protect journalists. If it were, that list of loopholes at the end wouldn't be quite so lengthy -- or quite so vague. (You can drive a team of ploughhorses through "information that could stop or prevent crimes such as...") This is a law to protect secrets. This is a law that redefines the exercise of a constitutional right as a privilege "protected" by the government. This is a law that allows the government to define what "the press" is under the First Amendment, and, my god, if that's not the primary consitutional [sic] heresy in that regard, I don't know what is. And I don't care that a judge can "extend" that privilege. That's not a judge's job, either.
To start at the end first: actually, it is. It is a judge's decision whether you have a privilege of any kind, or not. It's called "the rule of law." You could look it up.

And while we're on the subject, nobody has the privilege of withholding information "that could stop or prevent crimes."  If I, as a lawyer (attorney-client privilege), or a pastor (pastor-congregant privilege; not as strong as the former, but informally recognized, anyway), or just an adult, have reason to suspect a child is being abused, I can't withhold that information from the proper authorities.  Indeed, I have a positive obligation to speak up, or face criminal charges myself.

Every privilege, be it the strong protection of attorney-client, or just the general "minding my own business," has its exceptions.  If I stick a card that says "PRESS" in my hatband (and what am I doing wearing a hat?  Do I think I'm Don Draper?), am I suddenly privileged to know everything and withhold whatever I wish to?  Not in this life, boy-o.

And it isn't a law to protect journalists?  The hell you say!

Well, of course it isn't!  It's a law to protect secrets.  What the hell else other purpose does government pass laws for that relate to information, except to protect somebody's secrets?  And the ability to "exercise a constitutional right" is no more unlimited than my right to carry a shotgun wherever the hell I feel like it, or to own a machine gun.   As for the government defining the "press," it's done all the time, usually by the courts.  If anybody gets their hands on any government secrets and publishes them, there's immediately the question of whether or not they are a "journalist" for purposes of any privilege they have to deal in stolen materials.  Ask Daniel Ellsberg; he got prosecuted; the NYT didn't.

We've been 'round this mulberry bush before.  The 1st Amendment is not a "Get out of Jail Free" card for people who call themselves "journalists."  This shield law may be a bad exercise, but it's not because it takes away privileges from journalists, but because it actually gives them one they aren't entitled to.  And the real purpose of that protection is to clearly define it so the Press doesn't get to define it whatever the hell way they want to whenever they feel the pinch of Johnny Law.

If I had Snowden's secrets, there's little question the FBI would haul away my computers, my jump drives, and any other electronic storage device they found laying around the casa.  I'm not a 17 year old blogger, as in Pierce's example, but I'm a blogger.  Why don't I get a privilege?  Lest you think I exaggerate, according to Glenn Greenwald that scenario actually exists: Snowden has allegedly given his trove to many people as a "security measure."  If the FBI found those in the hands of "non-journalists," they'd take them away instanter.

OTOH, we know the New York Times has all that material; they've said publicly they're publishing it in concert with the Guardian.  Have the jack-booted thugs descended on the NYT and confiscated every computer in the building?  Are they likely to?

Get over yourself, journalism-boy.  You're no more the privileged defender of truth, justice, democracy and the American Way than Chuck Todd or Glenn Greenwald are, and even if you were you're no more entitled to special privileges than David Miranda is.

Welcome to the world the rest of us live in.*

*The irony of a "shield law" is that it is meant to put in to the statutes what is only observed in custom.  Custom, however, is entirely unenforceable and is applied only when media outlets (i.e., the people with the megaphones) find their ox being gored and react with righteous indignation.  The DOJ, for example, had every right to peruse the phone records of AP recently.  And while AP was outraged, if the DOJ did that to me, I'd have no privilege of protection at all.  AP has a privilege because they own a megaphone I don't, not because one specifically exists in law.

Of course, a shield law would actually take away that claim to righteous indignation.  That is rather the point in having one.  But I honestly think the majority of the American public doesn't really pay attention to the complaints about "press freedom" the press makes, anyway.  Which is another irony altogether....

1 comment:

  1. Next you'll be telling me that the State can define corporations! Oh, wait...