Hi Declan! On Wed, 29 Aug 2001 11:01:30 -0400 Declan McCullagh <declan@well.com> writes:

Now the thought experiment is this: If the Profession of Jornalists (PoJ) chooses to defend the proposition that anyone who wants to be one automatically is one, then whether I am today a journalist or not is a role decision that presumably I get to make, both to adopt the role and to rescind the role, according to my whim. As the role has and claims substantial privileges, what bargain would the PoJ offer to society at large to justify, whether politically or morally or economically, the extension to the many what had heretofore been special privileges afforded to the PoJ few? In other words, if the right claimed is to not tell law enforcement what one knows today in exchange for the promise to eventually tell the entire public that part of it that can be woven into a readable narrative, then the terms of the bargain are at least clear.

This sounds very much like an issue of who is clergy, protected by privilege of extending confidence and being exempt from compelled testimony. Unlike for physicians, and subject to many quirks lawyers, there can be no legitimate form of professional licensing for clergy, and likewise for journalists. In some religions there is a hierarchical structure of central authority which defines clergy and issues judicially reviewable credentials, or not (just as for press). In others, everyone is considered clergy, with only a distinction of who also obtains credentials from an IRS (of all agencies) sanctified supposed authority, or who functions as such in a professional as opposed to other role. More ethical states wrestle with legal ambiguity defining clergy, while other states try to pretend no one is clergy unless individuals license their religious rights with those problem states. The suggestion that a church with lay deacons acting as clergy cannot extend clerical legal status to other than professional employee clergy has been litigated, with findings that law cannot legally make such distinctions Constitutionally. The issues of a religion where many practitioners do not associate with an IRS approved corporate church, while most practitioners are acting as clergy to self if not also others, have not yet been resolved such that our legal system deals with current reality of legal fact. Journalistic privilege of confidence is very similar to that for clergy, with one set of issues that differ. Due to traditions of clerical counseling, clergy in many states are exempt from medical licensing laws regarding practice of Psychology. In turn, law in some states subjects clergy to compelled reporting of verified or suspected child and/or elderly abuse, as it does for doctors, teachers, social workers, etc. Clergy can also generally be sued for malpractice in such counseling if offered to others. The same issue exists with clergy as journalists of a supposed public service embedded in the profession as the historic rationalization for special legal status. At the time the Bill of Rights was adopted, most states either still were or had recently been theocracies, and retained traits of such church control of state. Some of those survive today despite the 14th Amendment making that illegal as of 1868. Splinter religion clergy not associated with large corporate churches presumed to somehow offer quasi-theocratic government public services may parallel the direction the specialty press has gone. Are the millions of minor variants of thousands of documented religions now present in the USA akin to the nature of press to now narrowcast to special interest groups, rather than mostly be a key element of linking government to the populace broadly? In either case it's easy to argue that neither clergy or press are universally today serving their historic traditional roles in society. It's equally easy to argue they deserve the same Constitutional protections long standing, as the roles under which press or clergy exist, whether serving narrow or broad audiences in particular cases, are adapted to the exponentially increased diversity of today's populace. Terry ********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ ------------------------------------------------------------------------- ----- End forwarded message -----