by Raizel Liebler
Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press 2015) is a highly interesting exploration of the limits of First Amendment protection of the press — and how we got here.
The book starts with placing our present understanding of the limits of freedom of the press within a historical context. Ranging from showing the impact of the famous 1890 law review article by Warren & Brandeis through the Restatement and a plethora of case law.
She suggests that like other areas, like “housing, the tech industry, and financial markets, where heedless expansion ultimately proved unsustainable,” the First Amendment is on a similar bubble. This bubble is based on
the scope of reporting and claims for constitutional protection both are continually expanded–encompassing a broader range of push-the-envelope publishers and reckless disclosures–until First Amendment freedoms so far exceed their original foundation that they are at risk of a calamitous collapse, jeopardizing all future protection.
She analyzes how much what a journalist is has been pushed far beyond the traditional limits of the Fourth Estate — and she argues that the ability to protect sources is in serious jeopardy:
if we are all journalists, then, ultimately, not a one of use is because the law simply will not protect every single person who declines to testify when government attorneys come calling.
Her suggestions regarding drawing the difficult line between journalists and non-journalists is mostly about the practice of doing journalism:
journalists need to begin making hard choices in the way they conduct their business, as well as in the ways that they define themselves and their craft. In this era of media pushback and increased privacy protections, they must tread more carefully in their news choices, and must also refuse to be led along blindly by unethical publishers who call for continually extending press rights to shield every conceivable disclosure of information, no matter than source and no matter the resulting harm.
Gajda calls out both tabloid “journalism” and traditional journalism that is now seeking clicks over investigation for making it possible for First Amendment protection to be slowly stripped away by several courts. Instead, she suggests that protecting news
in a way that a journalist steeped in the traditional, ethics-abiding mainstream journalism world might well define [news]– would lead to news that is richer, more important, and, for some, more interesting.
Summary: Strongly suggested for those interested in the First Amendment, the press, and how online communication has changed our interaction with mass media. This easy accessible book should be taught both in journalism school and law school. Lots to discuss, even if one disagrees with Gajda’s guidance for next steps.