Journalism Licensing Sounds Like a Good Idea… but….

SC Bill

South Carolina’s house bill 4702 seeks to create "The South Carolina Responsible Journalism Registry." The bill sounds like a pretty good idea. Lets face it, there are a lot of terrible journalists out there. A lot of hacks who don't deserve the name. When Sabrina Erdely made up the Rolling Stone story about gang rapes at a frat house at UVA, I called it "journalistic malpractice." But, I spoke merely hyperbolically. Wouldn't it be great to have a "reporter's license" that you could lose if you committed grave transgressions like that?

If you're nodding your head right now, slow down cowboy.

This seems to be another example of good intentions, but something I can't see working in practice.

There was a time when the title "journalist" was reserved for those working for a known publication. Everybody knew who was a journalist and who was not. Those days are long gone. With the rise of the internet, everyone can potentially be a “journalist”. Any John Doe can easily launch a blog and within a few magical minutes call yourself a “journalist”. Sometimes, they might even be telling the truth.

When it comes to protections for the press and speech protections for the rest of us, the distinction between "journalist" and "just some kid with a blog" is really nonexistent.

When the courts have recently struggled to determine who is a journalist and who is not, the answer has largely been "doesn't matter." For example, the Ninth Circuit Court of Appeals looked at that question last year when Crystal Cox, the well-documented extortionist, claimed the title of "journalist." (See interview with Marc Randazza on NPR here) Ultimately, the Ninth held, like every other court to look at the question, that it really doesn't matter — that journalists and batshit crazy lunatics get the same First Amendment rights. Similarly, but not identically, an appellate court in Florida looked at one of its journalism protection laws, Fla. Stat. § 770.01 and whether a blogger could claim its protections as well. The court in Comins v. VanVoorhis determined, essentially, that journalism is a thing you do, no matter who you are. (More here)

I think that part of the reason the courts have come to such conclusions is that defining "who is a journalist" is really difficult. But, this law would presumably help cure that problem. Person A has a journalism license. Person B does not. A nice bright line.

But is that a good thing? It strikes me with a little fear.

The First Amendment cannot abide in giving the government the ability to decide who has a journalism license and who does not. If we do that, it is almost certain that someone will abuse that power in order to promote a political agenda rather than a pure “ethical journalism” agenda.

Everyone has an agenda. I'm not sure that I trust some government bureaucrat to have the keys to who has a journalism license and who doesn't. When you take the high importance of the Free Press Clause and put the keys to it in the hand of a government agency, that can't end well. Imagine it is January 2002 and a journalist writes sympathetically about Al Qaeda. Would they lose their journalism license? Probably. What about today? Someone writes critically about Black Lives Matter, and there's an avalanche of letters from crybaby SJWs. Does that affect her license? Write a pro-Israel (or anti-Israel) piece, and do you think your journalism license wouldn't be on the block, depending on who makes the decision?

Perhaps there is a way to license journalists, which would be compatible with a notion of a free press. If there is, I lack the imagination to picture it. I agree there is a small problem, but we have always had good journalists and bad journalists. The marketplace seems to have taken care of that sufficiently up until now. I'm not ready to solve the problem of bad journalists by giving the keys to the Free Press Clause to some government-blessed regulator.

UPDATE: DUH!

Last 5 posts by Marc Randazza

Comments

  1. says

    Despite this particular bill being more about gun regulation than about journalism regulation, this is a question that comes up from time to time.
    My husband brought it up a week or so ago, and I don't think he had heard about this bill when he did.
    My mother brought it up a few years ago.
    Fortunately, I think, everyone seems to conclude that it's far too risky an endeavor to take seriously.

  2. Rsteinmetz70112 says

    The fact that the guy who pulled it was a South Carolina legislator and therefore a member of a suspect class, (southern and therefore stupid and bigoted) made it even easier for the usual suspects to fall for it.

    Oh yeah, the journalistic establishment gets all torqued up whenever someone other than a "legitimate" journalist does something (like Sean Penn or some dumbass lawyer blogger)

  3. says

    I think I actually tweeted what Reason said when I tweeted it. The original story I read contained this:

    Pitts told The Post and Courier his bill is not a reaction to any news story featuring him and that he is “not a press hater.” Rather, it’s to stimulate discussion over how he sees Second Amendment rights being treated by the printed press and television news. He added that the bill is modeled directly after the “concealed weapons permitting law.”

    That said, I personally feel that this is exactly why legislation aimed against guns is wrong. I understand that there are legal arguments that make what I just said seem silly. But it's my personal feeling that our government has spent more than two centuries gutting the Constitution because we think it's okay to carve out "common-sense" exceptions, or trying to read things in a way that allows the government to say they aren't ignoring the restrictions on governmental power, then that's exactly what's happening.

  4. G Lewis says

    Dumb foreigner question: I thought the US journalistic profession was licensed, sort of: those Press Card things people wave to go places in films clearly say "the bearer of this card has additional first amendment protections".

    Or is that a Hollywood invention?

  5. Max Kies says

    I think your response shows that the troll was pretty much on point. If one tries to apply the 'common sense' restrictions that keep getting proposed for the Second Amendment to any of the rest of the Bill of Rights, especially the First, it rightfully sends people up in flames.

    I'm not advocating absolutism, as there are classes of people who are disqualified from firearms ownership the same as there are people disqualified from voting (the two overlap, for the most part), but there seems to be a definite tendency on the part of a lot of people to pretend that 'right' has a very different meaning where the Second Amendment is concerned than as applied to any other.

  6. neoteny says

    Sabrina Ederly

    Erdely. Easy for me, because my mother tongue is Hungarian; and 'Erdely' means 'Transylvania' in Hungarian. But I've seen so many misspellings of her name, it starts to wear on me.

  7. says

    "there are classes of people who are disqualified from firearms ownership the same as there are people disqualified from voting"

    Also because of a gratuitous desire to signal to certain people that they are disfavored? After all, at the point where you're disqualifying enough people from voting that it actually makes any difference, you really don't have a Democracy any more, do you?

  8. Jacky Hood says

    A real journalist would not jump from third person to second person in a sentence like this one: Any John Doe can easily launch a blog and within a few magical minutes call yourself a “journalist”

  9. says

    As a local Chucktownian and frequent reader of the Post and Courier (as well as being quoted on the front page of the issue in question) I can assure you that the vast majority of citizens and journalists in this wonderful town had no clue that it was a gun regulation troll.

  10. Jerry Leichter says

    In principle, there could be a law that licensed journalists on the basis of "content-neutral" regulations. After all, this is a concept we already apply to regulations of speech in other contexts.

    In practice, what possible point is there to content-neutral licensing of journalists? Journalism as a practice exists exactly to the degree that its practitioners produce content.

    I suppose you could require, say, the ability to pass a test on spelling and grammar and proper organization of a story and proper citation and such – but what would be the point? And if you tried to enforce such regulations outside of the test environment, it would be unlikely to remain content-neutral for long.

    — Jerry

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