By KrisAnne Hall
It seems that every week there is some new attack on Liberty. Recently, it was the US Navy trying to remove Religious Liberty in the name of “Separation of Church and State.” Then it was our Congress, removing the right of trial and habeas corpus from US Citizens. I attribute this to the dismal state of our education system. We the people are so very ignorant of not only what our Liberties are, but of their source and value. Ask someone to tell you the five specific protections that exist in the First Amendment and you might hear one or two, followed by a blank stare and silence. Those that hate the fact that Liberty is an inherent possession of the people and want Liberty to be something the government gives to the “worthy” have really taken advantage of this gross negligence. If we do not know, if we do not understand what our Liberties are, how do we recognize when they are under attack?
Our legal education system is not any better. Rulings that fly in the face of our founders’ intent illustrate the shaky foundation given to our lawyers and judges. In a recent example a US District Judge, Marco A. Hernandez has taken it upon himself to decide who has the right to freedom of the press and its protections and who does not. This judge has done so by determining that a blogger, who has over 400 blogsites that publish her work, cannot possibly fall under the title of journalist. After all, we all know that the only people that are journalists are those represented in the White House Press Corp or paid by top media corporations. We definitely cannot accept someone who considers themselves a “blogger” and only prints on the internet as a REAL Journalist!
That is exactly what this federal judge has done. Oregon statute reads:
“[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by . . . a judicial officer . . . to disclose, by subpoena or otherwise . . . [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public”
“Medium of communication” is broadly defined as including, but not limited to, “any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”
However, this judge has claimed that this woman is not a journalist because she:
“fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system”
I am amazed at the focus of this Judge. He has taken the examples in the statute as the litmus test for determining media, completely ignoring the very plain statements “any medium of communication to the public” and “not limited to”. Any other time, a judge would be using this language to bring in everything, including the kitchen sink. This stinks of motive. But the Judge is not finished with his definition of media. He claims in order for Ms. Cox to be “media” she must show…
“evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story.”
This time, however, the Judge uses no statute, no legal source to develop this further definition. This is apparently something he has come up with all on his own. I wonder if many in mainstream media could hold up under this standard. I know for fact that today’s “journalists” fail in at least 5 out of 7 of these benchmarks. I mean really, when was the last time you heard this level of journalism from any US mainstream media? Because Ms. Cox does not fit this Judge’s internal definition of media, she is therefore not afforded the same protections as a paid member of the mainstream media due her under Oregon statute.
Would our founders, so vital to the very establishment of Liberty, have qualified as journalists under these standards? What about the Committees of Correspondence founded by the likes of Richard Henry Lee, Sam Adams, and James Otis, Jr.? These committees were dedicated to the purpose of providing the colonists with the truth about the activity of the British Government. Many colonists were tired of the propaganda and false reports coming from the King, Parliament, and their dedicated media and wanted to know the truth. The committees of correspondence provided this truth. They also became the Sons of Liberty and sparked a revolution.
I’m sure Thomas Paine would’ve landed on this federal judge’s chopping block, as well. After all, he was not paid by any media corporation and was definitely not approved by the crown for his Common Sense publications. We cannot forget about Mercy Otis Warren, who through her prolific writings of articles and plays encouraged a nation to stand against tyranny. Once again, I doubt if she would have been considered a “journalist” under this judge’s guidelines; she had no education in journalism, she was not employed by a major media outlet, and she certainly didn’t interview “the other side” to get both sides of the story. She didn’t have to, she was living it.
But how did our founders intend to handle this “congress shall make no law abridging the freedom of speech, or of the freedom of press”? The best argument I can offer is that of Alexander Hamilton’s as he states in Federalist Papers 84.
“…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”
Hamilton argued with the likes of James Madison and Richard Henry Lee that an incorporation of the Bill of Rights would be a danger to the very liberty that they hoped to protect. He believed to his core that if the Bill of Rights were incorporated in the Constitution, that it would provide to those who wanted to control Liberty the very excuse to do so through definition and regulation.
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted… I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”
Hamilton actually uses the illustration of the freedom of press. He reasonably argues that there is no need to insert a protection of freedom of press, because the federal government had been given no power to interfere with this Liberty. Hamilton knew, as Madison points out in Fed 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined.” Madison continues to specifically list those powers as “principally on external objects, as war, peace, negotiation, and foreign commerce.” Hamilton pointed out that regulation of freedom of press, or any of the proposed rights, was not part of the powers given to the federal government so they would have no right to attempt to regulate it.
Hamilton’s greatest fear was that by attaching a Bill of Rights to the Constitution, evil men who wanted to control Liberty would then claim a right to regulate Liberty. Here we are, fulfilling Hamilton’s greatest fear, coincidentally using his very illustration.
Our Constitution and our Liberty is in peril because our legal professionals have no idea the history behind our Constitution and the reasoning our founders put into its provisions. Our lawyers and judges cannot honestly honor their oath to the Constitution, because they have no true understanding of its meaning. They cannot do as John Adams commanded, “have an attachment to the Constitution and a conscientious determination to support it”, and ensure a “free republican government” when they are ignorant of the founder’s intent.
We the people must fill this void. We must become the ones educated enough to make that conscientious determination to support the Constitution. Reading it is not enough. Knowing case law is not enough. Just as any legally binding contract, we must understand what the parties intended the obligations and limitations of government to be. Otherwise we just end up pooling our ignorance. In this case, ignorance is not bliss, it is the death of Liberty.
Jose Lugo, editor ddtv.org