Monday, 1 July 2013

Freedom of Speech or Freedom of the Press?

There's a lot of misinformation and disinformation being spread about the 1st Amendment to the US Constitution. Before discussing that, here is the text itself:
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.

--From the wikipedia entry
[Please note the semi-colons that identify the clause boundaries]

Establishment journos like to pretend that the first amendment defines a special and protected class of people - "the press" - to which they belong, and which is privileged with immunity from government prosecution.

On this basis, they like to disparage outsiders as not being a part of their privileged club membership, and whenever controversy embarrassing to the government arises they like to subtly and grossly establish the people responsible as being outside of this club.

So they propagate and perpetuate these ideas;

(1) that they belong to a privileged class, that they call 'journalists', and

(2) that people who write things they dont like because these things (A) reveal their own craven pretences to journalistic endeavour, and (B) embarrass their powerful friends and protectors, (C) cannot be members of this class, and

(3) that there is some set of criteria in the 1st amendment that identifies real journalists, and

(4) that the common people cannot possibly qualify, or

(5) even understand.

Needless to say, none of these are true. In the context of the first amendment, the freedom of "the press" is appended rhetorically to the freedom of the people. The freedom of the press to publish (i.e. to speak) is a subset of the more general freedom of the people to speak. It logically depends and proceeds from the more general case. It is freedom of speech as it applies to a particular circumstance - that of publishing information unpopular with the powerful - and not a newly minted or peculiar freedom which applies only to a newly-defined class of people.

Nothing in this amendment establishes the press as having any peculiar freedoms not already recognised as inherent in 'the people', nor as a class of jobbers separated from the people by any peculiar characteristic of their employment, vocation, or privileges.

Nothing in this amendment identifies any criteria by which one can be said to be part of the press or not part of the press, a journalist or not a journalist.

Indeed, the very notion of such a class existing, and being recognised by the framers of the US Constitution, is risible. An outrageous fabrication having no relation either to reality nor the political sentiments of the authors of that worthy document.

The only - the sole, singular, and most profound - characteristic that is mentioned in this amendment, with respect to the freedom of the press, is speech.

The freedom of the press is the freedom of speech.

In other words, the freedom of the press is the freedom of the people to speak.

It is the freedom of the people to publish abroad that which the powerful would prefer were not widely known.

It is the freedom to speak that which the powerful would prefer remain unspoken.

And that is all it is.

And that is enough.

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Further Considerations on the First Amendment:


It is plain that the government and the establishment press have common cause in this fabrication. Each profits from their obscenely incestuous relationship.

The government has a class of tame pontificators at beck and call, eagre to widely publish its most absurd claims, and/or whitewash its most profound crimes.

The establishment journos have powerful allies, who provide lucrative sinecures for the faithful. Like the political class they're supposed to be investigating, establishment journos become celebrities in their own right.

One notes that no members of congress have proposed a bill to provide financial support to Wikileaks or Glenn Greenwald so that these can continue to perform their chosen vocation in the public interest.

But they have several times attempted to pass a bill providing financial support to the New York Times, the Washington Post, and similar enterprises whose owners regularly rub shoulders with the powerful, whose reporters go to absurd lengths to not upset the powerful, and whose business models are - perhaps like their political leanings - grounded in the 16th century.

One last point: the clauses in the 1st Amendment are important pointers to meaning and thus, to intent. Language is, after all, supposed to facilitate communication. Its conventions exist for the sake of clarifying meaning.

But perhaps the most profound issue relating to the Bill of Rights is only implied in all these kinds of debates, about what a particular clause in a particular amendment means, 250 years after they were written.

You see, the Bill of Rights faced some very strident and principled opposition. From the very first, certain parties to the composition of the Constitution wanted such a thing included, so as to clearly delineate the rights of the people. Others opposed this on the grounds that the people had clearly delineated the powers they had expressly delegated to the government, and therefore all remaining rights, powers, and privileges remain the property of the people themselves, as the Constitution states.

Further, the opponents argued that setting out such a list of rights would necessarily lead to the government later claiming that the list was complete and comprehensive, and that therefore anything not explicitly in the Bill of Rights is not a right the government is obliged to recognise and respect.

Sad to say, the opposition had it right on this matter. Not only have successive governments argued this very thing, but today the government applies to the people the very principle that the people applied, in the Constitution, to the government.

That is, whereas the people affirmed that the government has only those powers explicitly delegated to it, and the people retain all other rights and power, express or implied, the government now claims that anything it is not explicitly prohibited from is within its proper power to do, and the people are confined to only those rights expressly delineated in the Constitution (and then, only to the supreme court's modern - and often, woefully misguided - and restrictive interpretations of those rights).

As Glenn Greenwald notes, what the government does is supposed to be public. It is not supposed to have secrets from its employers, the people. But the government now tries to keep everything it does secret from its own employers.

In contrast, what private citizens do is supposed to be private. We are supposed to have secrets and we have a right to keep them private. But the government now tries to pry into everything we do, so that we have no privacy whatsoever.

This is what the words mean. Public = known to all. Private = known only to a few.

Our governments have turned democracy on its head.

Our governments have turned language on its head.

Our governments have turned meaning on its head.

Our government have thus turned our world upside-down.

We need to remind them that it is not their world, it is our world.

We need to remind them that it is not their language, it is our language.

We need to remind them that it is not their democracy, it is our democracy.

Now would be good.

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From coramnobis, easily one of the most erudite and trenchant commentators making regular appearances on Glenn Greenwald's Guardian column, comes this very pertinent response:


@ScuzzaMan 01 July 2013 10:35am. Get cifFix for Firefox.
The freedom the press is the freedom of speech.
Indeed, and your point is well-taken that "the press" as a group of persons -- the "Fourth Estate" -- is only a secondary meaning, and certainly not a privileged class. Again, to reiterate a point the Court was long since aware of, it's the published product, not the publisher or the reporter, that matters.
I've made this point before but it's worth repeating again, esp. as Glenn has to confront the popinjay-pundit set more and more. Who the hell are they?
"The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion."
-- Hughes, CJ., Lovell v. City of Griffin, 303 U.S. 444 (1938)
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(my emphasis added in italics. coramnobis' original emphasis in bold)

That latter sentence bears repeating, for it strikes directly to the heart of the freedom of the people to speak, and the pretensions of the modern press corps to a privileged status as the handmaidens of power:

"The [term] 'press', in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion."

Thanks, coramnobis.
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UPDATE: Friday, 13th September, 2013

Senate Judiciary Committee passes 'media shield law'

This is not a shield law. The press, as described above, requires no additional protection to that already contained in the 1st Amendment. Let me quote the text again:

"Congress shall make no law ... abridging freedom of speech, or of the press"

There cannot be any need for further protection under this text. There cannot be any ability to provide additional protection when these words do not constrain the federal government.

This new law allows the DoJ to force reporters to name sources, under threat of Espionage and Treason charges, merely by invoking "national security". Considering all the crimes our governments have committed in the last decade alone, under the auspices of "national security", is there anyone deluded or dishonest enough to claim that they can be trusted with such an exemption?

If there is, they plainly don't understand the very basis of the Constitution, which is explicitly based on an innate suspicion of all power.

There is a very old political pattern of attempting to destroy a human activity by first regulating it while claiming to be protecting it, and secondly squeezing it until there is no part of it not submissive to the "protecting" authority.

Dont let your government repeat this pattern, against the freest press in modern times ...
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