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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.

The Senate Judiciary Committee just passed a new “media shield” bill, and will now ask the Senate to take the bill up for a vote. In the wake of the Justice Department’s recent attacks on the freedom of the press, many members of Congress seem ready to take up the cause and support the media shield law. At first glance a new media shield law would be a positive development, because it would imply that our Congress took our press freedom seriously. However, that is just not the case. This media shield law is not just a bad idea, but a dangerous one.

GrahamLet’s begin with the most basic argument against the media shield law. It is unnecessary because the Bill of Rights offers us complete coverage on freedom of the press. “Congress shall make no law…abridging freedom of speech, or of the press.” It doesn’t get much clearer than that. So the real issue here is not that we need a media shield law (we already have the 1st Amendment), but that someone at the Justice Department needs to go to prison for their roles in the AP scandal and in the Fox News and James Rosen case. The likely jailbird should be Attorney General Eric Holder, because he signed off on both investigations. In addition, the Justice Department should have to pay hefty restitution to both organizations for their heavy handed attack on free speech.

The first argument was easy – we already have a media shield in the First Amendment and the real problem is that the Justice Department broke the law, so they should be punished. But the next argument gets a little more nuanced.

FeinsteinThe second argument here is that by allowing Congress to pass a media shield law we are allowing them to decide who is a journalist. Congress will not pass a bill that gives blanket protection to any Tom, Dick, or Harry’s free speech or press freedom. Their concern is that someone blogging out of their mom’s basement will get a hold of classified information, publish it and then be covered by the media shield law… and Congress just cannot risk any more Edward Snowdens. So in the bill that has passed the Senate Judiciary Committee, they have drawn lines to show who is and isn’t a “real” journalist. An example – an 80 year old retired English teacher working for a small town newspaper (or newsletter) is a journalist… but Matt Drudge who publishes the Drudge Report and is read by millions may not be covered. A reporter with a college paper may be covered, but one of the writers for this site might not be. This begs the question… where is Congress given the authority to decide who is and isn’t a journalist? The answer is, that Congress has no say in that question whatsoever – because the 1st Amendment says Congress shall make no law…abridging freedom of speech, or of the press. It doesn’t get much clearer than that. In fact, the 1st Amendment strictly prohibits Congress doing anything to draw lines on free speech or press freedom. The very notion of passing a media shield law that applies only to some is Congress doing exactly what the First Amendment says it CANNOT do.

So… Congress passing a shield law for some but not for all, and putting conditions on the information covered by said law – is unconstitutional and therefor illegal.

The last argument I want to make is about precedent. If we allow Congress to move forward with a media shield law that protects some citizens at a greater level than others, who’s to say they won’t use similar tactics to weaken other freedoms? For example, could we next see a Religious Practice shield law? Perhaps it will allow only practitioners of certain government recognized religions to practice freely. Or maybe a Firearm Shield law, which will say that the government cannot prohibit the use of certain firearms, while at the same time effectively saying that other firearms can be legislated against? Do you see the danger? Do you see how thin the razor’s edge of our liberty is?

A media shield law sounds like a good and noble idea, and maybe some legislators are well intentioned as they seek to pass the law. But you know the old saying about good intentions don’t you? The road to hell is paved with good intentions. It’s often true, and this law is no exception.

This is a dangerous bit of legislation and those of us who value our freedom of speech and our free press, should stand against it.

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