When the Department of Justice rolled out new policies intended to “strengthen protections for members of the news media” this summer, it wasn’t clear who belonged to the “news media.” Other DOJ documents suggest a narrow application to professional, traditional journalists. (The DOJ did not return a request to clarify the agency’s definition of “news media.”) The Federal Bureau of Investigation’s Domestic Investigations and Operations Guide excludes bloggers from the news media, along with “persons and entities that simply make information available,” like Wikileaks. These policies are guidelines, not directives, but as the Freedom of the Press Foundation points out, they are “part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it.”
Senator Dianne Feinstein argued for an amendment that would have restricted the shield to salaried journalists. “Should this privilege apply to anyone, to a seventeen year-old who drops out of high school, buys a website for five dollars and starts a blog? Or should it apply to journalists, to reporters, who have bona fide credentials?”
(This is a silly distinction, given that many of the world’s top experts have their own blogs. And as the non-partisan First Amendment Center notes: “Traditional reporters now blog daily, and prominent bloggers show up in traditional media.”)
But the Free Speech and Free Press Clauses of the First Amendment don’t distinguish between media businesses and nonprofessional speakers ….
And the courts have ruled that the freedom of the press applies to everyone who disseminates information … not just giant corporate media companies who can afford to pay “salaries”.
For example, the United States Supreme Court has consistently refused to accord greater First Amendment protection to the institutional media than to other speakers:
In Branzburg v. Hayes (1972), the U.S. Supreme Court described freedom of the press as “a fundamental personal right” that is not confined to newspapers and periodicals
In Lovell v. City of Griffin (1938), the Chief Justice of the Supreme court defined “press” as “every sort of publication which affords a vehicle of information and opinion”
First National Bank of Boston v. Bellotti (1978) rejected the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by” non-institutional-press businesses
In Bartnicki v. Vopper (2001), the court could “draw no distinction between the media respondents and” a non-institutional respondent
