We don’t doubt there are admirable libertarian impulses behind the shield law, too, if it is intended to encourage the exposure of illicit uses of government power. But like so many libertarian impulses, admirable or otherwise, this one ends up extending rather than restraining the reach of the state’s sweaty and thick-fingered hand. Any shield law must turn on definitions. Who’s a journalist? Well, says one version of the act, a journalist is “a person who, for financial gain or livelihood, is engaged in journalism.” Leave aside for the moment why anyone in his right mind would go into journalism “for financial gain.” The next question is, And what is journalism? It is “the gathering, preparing, collecting” etc. etc. “or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” These are definitions without practical meaning. They will be refined on the fly, applied willy-nilly, by either unelected judges or self-interested legislators.
Our guess is that Schumer’s act won’t go anywhere, precisely because its support among legislators is a panicked response to a jarring event, and its support from the president, a much cooler customer, is an expedient, a mere gesture. Yet the act’s revival, however hopeless and fleeting, is worth following. It has exposed yet again the self-aggrandizing pose of the establishment press—the instinct of Reuters and Gannett and the rest to confuse the interests of their own industry with a flourishing First Amendment. Trust us: If Gannett and Reuters went toes-up tomorrow, the First Amendment wouldn’t notice.
Even better, it reminds us of the advance our technology has made since the day of the great A. J. Liebling, author of the famous aphorism, “Freedom of the press belongs to the man who owns one.” Now, of course, we all own one. Liebling’s press baron could be anyone with a laptop and a connection to the free Wi-Fi at his local Starbucks. From even so modest a perch a budding Lord Beaverbrook or Colonel McCormick can gather “news and information” on “matters of public interest” and disseminate it to a readership beyond Liebling’s wildest dreams. The Free Flow of Information Act reminds us that the free flow of information—the freedom of the press—the First Amendment itself—will thrive so long as the government doesn’t try to protect it.