The Culture Warrior’s Constitution & the Fungible First Amendment

Despite tea party cries for constitutional fidelity, the Culture Warrior’s Constitution continues to be a bizarre beast, indeed. First, the Culture Warrior’s Constitution diverges from actual law by purporting to withdraw First Amendment protection from non-western religions, like Islam, based merely on majority opprobrium. Thankfully, the courts disagree.

Now, per Sarah Palin, the Culture Warrior’s Constitution doubles down on this definitional mischief, by defining a “journalist” — a kind of actor entitled to freedom of speech — to exclude those who publish classified material in the exercise of their art. Settled law, of course, is quite to the contrary. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971).

This is a new, clever, and corrosive method of conservative constitutional argumentation. Statutory draftsmen and lawyers will both know that arguing definitions allows one to work within and subvert a legal framework they otherwise can’t change. There’s nothing dishonest about it in most cases; it’s just good lawyering. Dishonesty enters the equation when the definitions being argued aren’t actually unsettled terms of art, subject to multiple interpretations — say, “Event of Default” in a sophisticated financial instrument — but words that draw from or exist solely based on their ordinary meaning. Like “religion,” “speech,” and “journalist.”

The definitional trick lets radical pundits like Palin feign allegiance to the law, by acknowledging the existence of overarching principles — “freedom of religion,” “freedom of the press” — but avoid their application by introducing clever limits below the surface. Such argumentation subverts both language and law. Words have meaning, and the basic principles of freedom weren’t forged as, and must never be wielded as, tools of exclusion. Ex-Governor Palin might be right about the danger posed by WikiLeaks’ existence — I really don’t know. But her method of reaching this conclusion ought to be deeply troubling.

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6 comments

  1. I’ve always understood “freedom of the press” to mean “freedom of the [printing] press”, not “freedom of the [institutional] press”. As in, you have the freedom to write and self-publish. Basically, it’s protecting every person’s right to have a blog or a zine or hand out homemade pamphlets on street corners, not some special set of rights for Official Journalists the likes of the New York Times, Wall Street Journal, and CNN/Fox News.

    1. That’s a viewpoint I’ve never heard before.

      Why would the freedom need to be differentiated from the freedom of speech?

      ARe you taking the constitution literally to be saying, you can vocally say what you want but if you want you can choose to write it down as well? I mean, the press did exist back then. They had to publish the federalist papers somewhere.

      You say it’s different, but how is it different from journalists working with the press?

      1. Yeah, I read “; or abridging the freedom of speech, or of the press;” as literally saying that everyone has the right to say what they want and they can choose to write it down and distribute it to a wider audience as well.

        I don’t think I’m saying it’s different – I think I’m saying that there’s no difference between any randomly selected person and a journalist working with the press-as-media: both have the same right to write whatever, due to the freedom of the press-as-instrument.

  2. That’s interesting. But the Amendment must be read to protect the press as an institution, too, or it’s surplusage. Right?

    1. No, I don’t think it has to protect the institutional press to avoid surplusage. I think the phrasing “of speech, or of the press” exists because of the same historical distinction between spoken and written communication that gives us libel and slander as separate but functionally equivalent torts. I also think it makes sense given the way the amendment’s punctuated that it does three things:
      1) Separate church and state
      2) Prohibit abridging individual rights to speak or write
      3) Prohibit abridging individual rights to form groups and protest.

      That’s not to say the press as an institution isn’t protected, but it’s only protected to the extent that it consists of people using their freedoms of printing and speaking. There aren’t special protections for institutional press – there’s no constitutional basis for “journalist’s privilege”, for instance, which I think you could argue there were if the amendment actually did refer to the press as an institution.

      1. There’s a pretty big problem there in that “the press” as an institution did not exist when the Bill of Rights were created. The only thing around was some guy with, literally, a printing press, publishing single-page newspapers with stuff he mostly wrote himself (or took from other papers) plus some opinion pieces by others.

        So the First Congress could hardly be expected to specifically mention an institution which only really came to exist, as we understand it, about a century later.

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