I think that's fair, and a good place to start. I have no objection to the fact that I must get a license from the state to practice law and that I can lose that license if I lie to judges. I would ground the basis for that restriction on speech on much more than countering innate impulses of humankind, but I'm not sure that's material to the discussion.honorentheos wrote: ↑Fri Sep 02, 2022 5:34 amI suspect you and I agree that regulation that can be shown to serve a public interest is a necessary counter to certain innate impulses of humankind. I would be surprised to find out you, as a lawyer, did not support the state having some legal oversight on the requirements to both call oneself a lawyer and practice law. Many professions have similar "gatekeepers" over who can practice or hold a professional title where the restrictions on speech and choice are deemed to have bearing on public health, safety, and welfare.
I don't think it ever makes sense to discuss rights in a vacuum, so I absolutely agree. Have you ever read Hohfeld? His analysis is really helpful in emphasizing that everything is some kind of tradeoff.honorentheos wrote:It seems to me we aren't talking about rights in a vacuum but rather about competing rights. The question becomes less about the pure freedom of journalism and more one about if the right to speech should be partially infringed by regulatory means that operate in the interests of public health, safety, and welfare to operate as a news agency? I don't know.
In Constitutional terms, I think what you are describing is the conflict between constitutional rights and the state's police powers. That's a hard issue, in my opinion, as evidenced by the fact that it gives the Supreme Court the fits on a regular basis. A good example is the litigation, such as it was (damn shadow docket) over Covid restrictions and the first amendment rights of free speech, assembly and exercise of religion. I think the boundaries between the two are hard to figure out in any consistent way. Maybe impossible.
Generally, I think the immediacy of the threat matters a great deal. That's what is the big difference in the boundary between protected political speech and inciting a riot. That's the difference, in my opinion, between the President inciting a march by a crowd, who he knows includes people with guns, on the Capitol as votes are being counted and a Senator claiming that there will be blood in the streets if Trump is arrested. One is an immediate threat. The other isn't.
But, when it comes to government regulation of political speech, I'm very leery to invoke the police power to regulate the substance of speech beyond the existing limitations. The state is the player in the country that is the 800 pound gorilla. And even our system of checks and balances isn't a reliable counterweight to abuse of that state power. So, I place a high value on institutions that have the ability to counter the power of the state. And, for all of its faults and imperfections, the free press one of the best we have. Shifting more power to the government and away from the press is one of the last things I'd want to consider in addressing any problem.
Even requiring journalists to get a license and be regulated as lawyers or doctors are would be a violation of the first amendment under established law. In fact, that's all the freedom of the press meant for a fair number of years -- the government could not require newspapers to get a license. The press could still be criminally prosecuted for criticizing the government. That's the difference between lawyers and the press -- there is no constitutional right to freedom of the lawyer. And I think that's important, given that the key part of any autocracy is controlling information. So, while it seems to make intuitive sense to treat journalism like other professions, I think there are important considerations that justify keeping the governments grubby mitts off the press as much as possible.
[/quote]Given that most news is delivered by cable, I'm skeptical that even the most liberal of justices would buy into the notion that, if it's on cable, it's can't be news. As for the regulation part, I kind of jumped the gun and addressed that above. But there may be some ways to tinker that would be within the constitution and also have some effect. One that comes to mind is the "Tucker Carlson" defense. I wonder whether a law that prohibits using that defense in a defamation case unless the speech is accompanied by a disclaimer would pass constitutional muster. It might. At least one Justice (Thomas) takes the position that false speech is not protected by the Constitution at all. And Tucker would be just as free to speak under such a law as he is today. Maybe there are other changes. In general, I think carefully drawn up disclosure laws have some potential to be found constitutional and have some effect.[/quote]honorentheos wrote: There is a real part of me that is skeptical of cable news being anything other than entertainment at some level across the board. So I question if title/practice as a newsroom could be regulated where professional standards of journalism as set forth by journalists can be fairly demanded of all news rooms to wear the title. What about our current news ecosystem suggests a certain standard like this could upheld?
You may be right. I have no idea what the thinking was. But then it's pretty obvious that everyone doesn't share my opinion on what is rational.honorentheos wrote:But I don't think consumers or even protesting matters, anyway. My skepticism had swung to cynicism when it comes to that belief in effecting change with the Fox News organization.
Here, let's consider the case of the December 2018 government shutdown. You may recall the standoff over funding the border wall. The Senate had passed an appropriations bill that did not include that funding and it was set to likely pass the House with Trump onboard to sign it. Then the pundits at Fox News turned on Trump, calling him weak and insulting him which of course resulted in the shutdown lasting into February and Congress at odds with Trump.
What was that? Seriously. Follow the motives for that back to their source and pull back the curtains so I can see what is driving the narrative there. I honestly don't think we can treat it as having a rational or market motive. But I think that because I can't discern the potential motives there anymore.
