[C]ourts occasionally identify a reluctance to extend journalistic protections to non-traditional “media” sources such as bloggers because of a perceived lack of a limiting principle. How can everyone potentially be a journalist? courts seemingly ask. This sentiment is frequently echoed by mainstream journalists who, rightly or wrongly, balk at the perceived threat of dilution of legal protections for traditional journalists posed when (as here) self-proclaimed journalists might go too far and risk protections for established media. As EFF and many others have pointed out, the proper approach to this question is to focus on what amounts to journalism, not who is a journalist. Journalism is not limited to a particular medium; instead, it focuses on whether someone is engaged in gathering information and disseminating it to the public.
Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?
The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.