You might have heard this week about the looniest media-related legislative proposal of the new year: A measure in South Carolina to create a “responsible journalism registry” that would require background checks and assurances that a person is “competent to be a journalist” before acting as one.
Well, turns out it’s less of a real proposal than a bit of attention-seeking trolling from one state lawmaker, Rep. Mike Pitts, R-Laurens. But though it was an effective troll job—add this piece to the scores already on the internet—it also revealed some common misunderstandings about the First and Second Amendments.
Pitts introduced a bill Tuesday titled the South Carolina Responsible Journalism Registry that would allow for fines or prison time for any “person who works as a journalist without registering.” The bill quickly made the social-media rounds, and just as quickly it drew fire from advocacy groups like the ACLU of South Carolina and the South Carolina Press Association.
For his part, Pitts said he intended for the bill, which is patterned on concealed-carry registration laws, to “start a debate about all of your constitutional rights.” He told the Index-Journal, in Greenwood, S.C., that the press has not done a fair job of reporting on Second Amendment issues.
“Both [the First and Second] Amendments are equal and pure, but there’s a perception, and it’s well presented by the media, that the Second Amendment is more of a privilege than a right,” Pitts said. “If the First Amendment is so absolute, why isn’t the Second Amendment?”
Pitts acknowledged the obvious concerns about the bill’s constitutionality and that he did not pen it with the hope of seeing it pass. But he said that, by his lights, the bill has been successful. “It has generated … serious conversation … about the issue [of the Second Amendment not getting fair news coverage],” he said.
And I’d say the bill has been successful in one other way, too: It has revealed that Pitts isn’t really prepared to engage in the discussion he wanted to start. I don’t necessarily begrudge him a legislative gimmick, but I do wish he understood better the points he was trying to make.
Contrary to his comments, the First Amendment is not “absolute.” It never has been. It never will be. The First Amendment does not protect obscenity or true threats or fighting words or incitement to imminent lawless action. The list goes on. This “absolutist” stuff appears again and again when people draw connections between the First and Second Amendments for gun-control debates, but Pitts should know better.
It is true that the First Amendment is intolerant of press licensing, as Pitts seems to understand, whereas gun-licensing laws historically have been seen as constitutional. But that’s not the result of a double standard in contemporary press coverage. As UCLA law professor Eugene Volokh pointed out, “[W]hatever you might say about licensing requirements for gun-carrying, American tradition has—rightly or wrongly—authorized concealed carry restrictions (and even concealed carry bans), starting in some states in the 1800s and generally accepted by courts throughout the 1800s. American tradition has taken a very different view of attempts to license journalists, from before the Revolution to the present.”
Take heed, Rep. Pitts.
Other lowlights from around the country
Pitts doesn’t stand alone in the halls of media-law ignominy, though. Two other entrants deserve quick mention.
First, in Kentucky, state Rep. John Carney, R-Campbellsville, introduced a bill to forbid any person who witnesses “an event that could reasonably result in a serious physical injury” from posting online any pictures or information about the event “until at least one hour has passed,” if the post could identify any victims.
Carney said he didn’t plan to push the bill this session, and he told the Lexington Herald-Leader that it “probably would have First Amendment problems.” (It’s a little unnerving to see a sponsor admit that, even for a bill that’s not intended to pass.) He introduced the measure nonetheless because he wanted “to get discussion going out there, asking people to be more respectful about what they put on social media.” He said no one should have “to learn about the loss of a loved one through social media.” He said the bill would buy emergency responders the time they need to notify families properly.
The bill actually states that it would not apply to “any member of the news media.” The problem, of course, is twofold: It is hard to define “the news media,” and members of the public are free, under the First Amendment, to photograph and publish what they can see and hear plainly in public spaces. The government may not restrict those rights in the absence of a compelling interest, and Carney’s concerns here about tastefulness and propriety wouldn’t be sufficient.
Finally, there’s a measure in Arizona that seems to be an actual proposal, though it’s legal merits are just as dubious. State Sen. John Kavanagh, R-Scottsdale, introduced legislation Jan. 7 to make it “unlawful for a person to knowingly make a video recording of law enforcement activity … if the person making the video recording does not have the permission of a law enforcement officer and is within 20 feet of where the law enforcement activity is occurring.”
A violator will be found guilty of a “petty offense,” unless he is a repeat offender or failed to comply with a verbal warning to stop recording—in which case the offense is a misdemeanor.
The problem here, as I’ve written before, is that you have the First Amendment right to record police activity in public. A federal court said as much as recently as October. That case was consistent with others in this area. In 2012, the US Department of Justice released a letter asserting that the public has the right to record police activity. In 2013, the DOJ urged a federal court to say the same. In both 2011 and 2014, federal courts issued strong opinions to that effect. And in a 2011 opinion, the First Circuit outlined the reasons that we’re all entitled to record public police activity: Doing so promotes the discussion of public affairs and “aids in the uncovering of abuses,” and the police “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”
The right to record isn’t absolute. It’s subject to time, place, and manner restrictions depending on the circumstances of a live situation—e.g., an officer could close an accident scene for safety reasons. (Someone who’s really interfering with police activity by being too close might legitimately be directed to stand back, whether filming or not.)
But the right does exist, and it would neuter Kavanagh’s bill. Which, as the ACLU of Arizona added, is “just a bad idea” in the wake of numerous disputed police actions caught on camera in the past two years, from Walter Scott’s fatal shooting in North Charleston to Laquan McDonald’s in Chicago. Now is not the time for less police scrutiny.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.