Anyone who thinks the First Amendment is straightforward probably isn't a lawyer.
Take a seemingly simple question such as "What is a journalist?" Lawyers, prosecutors and judges perennially wrestle with the answer to that, and time has made things no easier. In the age of WikiLeaks, blogs and social media, the answer is murkier than ever.
To help sort out some of the most complicated and contested free speech issues, Charles D. Tobin, a Washington, D.C.-based media lawyer, spoke today at a casual roundtable at the Kansas University School of Law.
Tobin has represented media clients in state and federal trial and appellate courts across the United States. He also advises news organizations on how to respond to court subpoenas for information and how to gain access to government information.
Tobin discussed a post-Edward Snowden era, a reference to the former U.S. intelligence worker who leaked government surveillance secrets to the media. Journalists and whistleblowers have been prosecuted as spies. At the same time, there has been a renewed interest in protecting freedom of the press and speech at all levels of the federal government.
But with any new potential law protecting the press, the question about who is included in "the press" arises. Tobin said the law should include as many voices as possible in its definition of the press.
"If you want to inform public discussion, the information you gather should be privileged," he said. Doing so might open the doors to a flood of bloggers and tweeters claiming press privileges, but Tobin is willing to make that tradeoff.
"It rubs me the wrong way to be giving out First Amendment freedoms" based on notions of journalistic legitimacy, professionalism and established credibility, he said.