Earlier this month, Democratic Rep. Eric Swalwell introduced a bill to make it a federal crime to physically attack a journalist. As a member of the minority party, Swalwell likely knows that his bill has little chance of passage and is more an exercise in virtue-signaling than legislating.
But the bill demonstrates two troubling trends: a lack of respect for the limits of federal power and a profound misunderstanding of the rights protected by the First Amendment. Swalwell’s bill, which has the Orwellian title of “Journalist Protection Act,” would for the first time define reporters as a protected class with special privileges. In the name of protecting reporters, the bill would degrade First Amendment freedoms for all Americans.
Can They Do That?
The most obvious flaw in the bill is that it would involve Congress exercising a power that the Constitution does not grant to the federal government. The section of the U.S. Code to which Swalwell would add his new law, Title 18, Section 7, deals mostly with assaults against federal officers, or assaults committed on federal property. The reason for this is simple: these are the only assaults the federal government has the power to punish.
Our Constitution created a federal government of limited powers. Although Article I, Section 8 of the Constitution provides a lengthy list of things over which Congress has the power to make laws, the list is intended to be exhaustive.
Enacting a criminal code for federal lands is easily encompassed within the grant of power to “exercise exclusive Legislation … over such District … as may … become the Seat of the Government of the United States, and to exercise like Authority over … [federally owned] Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” Likewise, one could extrapolate a power to ban assaults on federal officers as being “necessary and proper” to carry out federal laws—federal laws would not be obeyed very often if federal officers could be assaulted at will.
When the first federal Congress (which included some of the same men who wrote the Constitution) passed a crimes act, the act concerned crimes of uniquely federal jurisdiction, including treason, piracy, and counterfeiting. Where “ordinary” crimes like murder were banned in that act, it was only when they were committed in the sort of federal property or district the Constitution specifies.
There is a good reason that Congress did not seek to punish ordinary crimes committed outside of federal property: there was no grant of power in the Constitution to do so. Nor was there intended to be such a provision: common-law crimes—including assault and battery—were already illegal in every state, just as they are today.
Modern members of Congress are less restrained, although the Constitution could check their excesses should a more expansive law, like this one, be challenged. Swalwell attempts to throw a fig leaf over his naked power grab by limiting the law’s scope to injuries to journalists committed “in or affecting interstate or foreign commerce.” But this is merely boilerplate language added to many a law that overreaches federal authority, and courts are likely to see through it.
In the challenges to Obamacare, for example, courts found that Congress’s enumerated power over interstate commerce did not give them the power to compel purchases of health insurance; that requirement only survived through a creative reading to the power to tax. The same result would likely apply here. What part of punching a journalist in the face could possibly implicate interstate commerce, unless the assaulter paid someone to cross state lines to do it?
Reporters Are Not a Separate Caste
Many of the Founding Fathers believed that the limits to federal power were so clear in the Constitution’s text that no Bill of Rights would be necessary. After all, if Congress does not have the power to establish a state religion, why would it be necessary to explicitly ban it from doing so?
In this case and others, the Anti-Federalists’ wisdom has benefitted us. Clever lawmakers will always find a way to stretch an enumerated power to cover something they want to do, and judges are increasingly unlikely to call them out on it. The explicit prohibitions of the Bill of Rights have time and again saved us from creeping tyranny.
But Swalwell’s bill also deeply misunderstands the Bill of Rights, specifically the freedom of the press protected by the First Amendment. In writing a bill for the specific protection of one class of people—journalists—Swalwell and his cosponsors make a mistake that many journalists do: believing that the freedom of the press is a right granting certain privileges to a certain group. This is not the case, either with press freedoms or any others guaranteed in the Bill of Rights. The First Amendment does not create a caste system; its protections are the birthright of all Americans.
The trouble springs in part because journalists as a group refer to themselves as “the press.” The practice, which probably arose because of the words of the First Amendment, is an example of metonymy, the rhetorical device by which a thing is referred to by the name of something closely associated with it. For example: when a news report says “the White House refused comment,” it is not talking about the building itself, but the people who work there.
Likewise, the “press” originally referred to the printing press on which newspapers and books were made. Later, it became extended by metonym to include the entire publishing industry and even people who work in publishing. Members of the press have used this to claim a special “reporter’s privilege,” a claim the Supreme Court rejected in Branzburg v. Hayes in 1972 and lower courts have continued to reject ever since.
Freedom of the press, therefore, is shorthand not for the freedom of a group of people, but for the freedom to publish. Comparison to state constitutions written at the same time bears this out. Pennsylvania’s 1776 constitution, for example, declares that “the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” The emphasis clearly is on the right to publish, which is guaranteed to all people. In restricting the practice of journalism to a select group, the bill’s author misses this crucial point about our natural rights.
Swalwell would turn this universal freedom on its head, and not only by extending special protections to one class. By naming that class—journalists—in his bill, he is also obliged to define it. In doing so, he would have Congress define this group of people for the first time, and give unprecedented powers to the federal government in the process.
The Government Should Not Have This Power
Presidents have long feuded with their enemies in the press. Barack Obama famously and repeatedly snubbed Fox News, while Donald Trump is constantly locked in a war of words with CNN, among others. Under current law, words are the only weapons at the government’s disposal. A president may attempt to discredit reporters or news companies by criticizing them, but his words do not carry the force of law.
Under Swalwell’s bill, the government would now define “journalist.” As the proposed act states:
The term ‘journalist’ means an individual who—
(A) is an employee, independent contractor, or agent of an entity or service that disseminates news or information—
(i) by means of a newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise), news program, magazine, or other periodical (whether in print, electronic, or other format); or
(ii) through television broadcast, radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 522(13))), or motion picture for public showing; and
“(B) with the primary intent to investigate events or procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, engages in newsgathering.
The first problem is that this requires a journalist to act on behalf of a company; independent writers need not apply. Absurdly, an article like the one you are reading now would be treated differently under law if it were published on my personal website instead of here in The Federalist.
Secondly, the bill limits how information may be published in order to be considered “real” journalism. Thirdly, and most importantly, the statute defines the permissible intent of a journalist, which is the dissemination of things that are “matters of public interest.”
Who defines public interest? As of now, the public does. If you are interested in something, you read it. If not, you don’t. Journalists catch on pretty quickly about what the public is interested in and direct their efforts accordingly. Under Swalwell’s bill, the government is the judge of where those efforts should be directed, with the direction of those efforts determining who is considered a journalist under the law. Whether this classification would be determined by regulation or by courts, the bill does not say.
There is a lot of fake news out there, but putting the government in charge of what counts as “real” reporting would be a disaster for press freedom. The Clinton White House told the public repeatedly in the late 1990s that the president’s sexual adventures were not a legitimate topic for reporters to pursue. President Trump would likely say the same about his tax returns, business dealings, and extramarital affairs. Journalists and their readers and viewers decided otherwise, as is our right—for now.
Swalwell’s bill would limit a universal freedom to a discrete class, and place the government—either through bureaucracy or through the courts—in charge of defining that class. In the process, it would expand federal government powers ever farther beyond the bounds of the Constitution. The proposed Journalist Protection Act is just the latest example of governmental overreach and ignorance of the nature of our fundamental rights.