Essay on Constitutional Problems

The Paradoxes of Special Treatment

Tibor R. Machan

One of the embarrassments of the First Amendment to the US Constitution
is that although it is a quintessentially libertarian principleÂ?the right
to freedom of the press and religionÂ?it perpetrates a colossal case of
favoritism, given how much power the courts have taken the US Constitution
to accord to the government in other areas and professions. And today this
is coming to haunt jurists big time.

The recent proliferation of bloggersÂ?who are amateur journalists,
reporters, editorialists, pundits and the restÂ?is testing the notion that
those who deal with ideas ought to be more free (and enjoy exclusively the
special privilege of keeping sources confidential) than the rest of us.
Bloggers are some of the rest of us. But should they not be free of
government meddling? Should confidentiality be granted to conversations
between a blogger and some source concerning a matter of concern to the
law? Well, journalists have been insisting they deserve this because they
would lose a vital resource if they had to reveal the names of their
informants. Well, so might bloggersÂ?or anyone else, for that matter.

So now the bright idea has been proposed that a legally binding
distinction be made between professional journalists and amateurs,
including bloggers. Two journalists, from The NY Times and TIME Magazine,
are attempting to fend off investigations into the leaking of a CIA
operativeÂ?s name to columnists Robert Novak and they are advancing an
interesting argument. As The New York Sun reports,

The crux of the reportersÂ? contention is that the public would be less
well informed if journalists could not promise their sources
confidentiality. However, the proliferation of blogs and bloggers could
represent the AchillesÂ? heel in this approach. If Ms. Miller and Mr.
Cooper are entitled to claim special treatment in the courts, so too could
hundreds of thousands of Americans who use the Internet to post comments
about their views on current events.

Problem is the true AchillesÂ? heel goes much deeper. Journalists and
ministers simply ought not to be the only ones whose individual rights
need to be fully respected as they go about doing their work. Whether this
includes their having the right to keep sources confidential or anything
else, the point is that neither bloggers nor anyone else ought to be
subject to prior restraint. And this means that all professionals, not
just those in journalism (and the ministry), must be treated as innocent
unless proven guilty.

But this, of course, would pull the rug from under all government
regulations of all professionals throughout the country. None of them
should be treated as less deserving of having their unalienable right to
liberty protected, which means none of them may have prior restrain
applied to them. All government regulation amounts to prior restraint (a
term usually reserved to government trying to step in to mess with the
press even if what the press has done violated no oneÂ?s rights). All these
regulations aim to tame the professionals being regulated before they do
any harm, without the requirement that what they do is shown to pose a
clear and present danger to anyone.

The New York Sun piece goes on to discuss certain pertinent remarks by a
journalism lobbyist:

Â?The whole issue now is, who is a reporter?Â? said the president of the
Texas Press Association, Wanda Cash. Â?I have great discomfort with that.
Is Drudge a journalist? Probably. Is the disgruntled refinery worker who
puts up a blog about Exxon a journalist? I donÂ?t think so. The problem is,
who decides?Â?

If, however, all citizens had the very same liberties, never mind what
profession they belong to, these issues would never arise. Either everyone
is free to do whatever is peaceful but, if there is some kind of rights
violation, no one may hide behind privilege, period. Or, alternatively, if
professional journalists may hide their sources when they learn of
something of interest to the legal authorities, everyone else should also
have that right. If a colleague of mine tells me of some deed that the
legal authorities want me to reveal, I get to keep the matter to myself as
much as a journalist or priest or spouse does without being accused of
obstruction of justice.

Trouble is that much of politics, law, and public policy plainly lacks
integrity. It is all about yielding to pleas for special treatment.
Farmers, scientists, educators or whoever are all standing in line for
being dealt some favor or exception or subsidy.

What is not fully recognized is that the US Constitution itself gave rise
to this with privileging journalists and ministers regarding much of their
conduct, while fully exposing the rest of us to the meddlesome state.
Yet, the criterion for whose right to liberty requires full protection
should have nothing at all to do with oneÂ?s profession. No one should be
at liberty to violate anyoneÂ?s rights but everyone who acts peacefully
must be protected from prior restraint.

The Interstate Commerce Clause has, sadly, been interpreted over the last
12 decades or so to expose everyone within or near commerce to government
interference. There is absolutely no justification for thisÂ?our rights are
ours as human beings, first, then as citizens, not as journalists,
philosophers, auto mechanics, psychiatrists or restaurateurs. Regardless
of oneÂ?s profession, one has basic rights to, among other things, oneÂ?s
life, liberty, and pursuit of happiness. And the US Constitution, while
comparatively speaking a relatively freedom-promoting document, simply
fails to apply the FounderÂ?s basic political philosophy strictly enough.

Periodically these flaws of the Constitution lead to troubleÂ?as they did
to major trouble via the civil war (or as some prefer to call it, the War
Between the States). Now the problems spring up vis-à-vis journalism and
the bloggersÂ?should the latter be among those exposed to government
meddling or should they be privileged just as journalists are? And then
shouldnÂ?t just all of us? (And when it comes to ministers, what if I start
a little church of my ownÂ?should I be tax-exempt or should there be some
government established distinction between me, a member of a tiny clergy,
and all those others who are members of big, established churches?)

These problems are all symptoms of failing to respect and protect
everyoneÂ?s rights. Any decisions the courts make here are already flawed
because the document on the basis of which they attempt to rest a decision
is itself incoherent.