Legitimate This, or, Strict Textualism Does Not Mean You Can Torture the Words

There is a debate raging in the courts and in the pages of newspapers across America over the issue of whether writers for web-based publications deserve to be treated as "legitimate" or "traditional" journalists. Many newspaper editorialists -- as well as plaintiff Apple Computers ("suppress free speech different®") -- say no.

A big problem with that argument is, the First Amendment doesn't say anything about legitimacy or tradition.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I don't see any clause in there saying "only if established news media companies approve of the speaker."

The Apple case is complicated and involves state trade secrets law, but the apparent belief held by some that the case turns on a distinction between "legitimate" and "illegitimate" journalism is, to understate the situation, disturbing.

"Free speech" in the United States has never been as strong or as real as our elementary school social studies books suggested (propagandized) that it was, but it's taken an extra beating in the last few years. "Free speech zones" for protestors, for example. A "legitimacy" test for journalists would gut it even further.

As your colicky attorney, I advise you to make some noise about this, before it's illegal.

For more on the Apple case, click here.

POSTSCRIPT: And if we have to apply a legitimacy test, I would suggest that newspapers that insist on publishing comic strips like "Hi and Lois" and "Blondie" for decade upon painfully unfunny decade (I'm lookin' at you, Chicago Tribune) cannot be considered "legitmate" under any sane definition of the term.