I recently wrote about the dust-up following the awarding of a Pulitzer for political commentary to online cartoonist Mark Fiore, when it was revealed that Apple had rejected Fiore’s proposed iPhone App several months before Fiore’s Pulitzer fame.  As had been widely reported, Apple subsequently invited Fiore to re-apply, which Fiore promptly did and now, evidently, Fiore’s cartoon app is available for download through the store.

Commentary on the episode leaned heavily to the view of “what gall!” of Apple to presume rights to regulate content.  So, for example, Rob Pegoraro wrote in the Washington Post last week:

If this conduct seems arbitrary, that’s because Apple gives itself that liberty.  The Cupertino, Calif., company’s iPhone developer agreement, as published by the Electronic Frontier Foundation, says Apple can reject an application “at any time” if it thinks rejection would be “prudent or necessary.”

Pegoraro commented that Apple had subsequently “relent”-ed, and presumably characterizing Apple’s conduct as “arbitrary” was appropriate.

And indeed, “arbitrary” may be appropriate, although usually typically the word is thrown around in characterizations of government action like “arbitrary and capricious”.  The stuff of epochal Supreme Court 4th Amendment cases challenging the Bush Administration, for example.

Two thoughtful takes on a broader related point were published in the last week, first by Michael Kinsley in the Atlantic and by William McGurn in the Wall Street Journal.  Both are worth reading if only to appreciate contrarian views when society of a collective pile-on of “The Man” (aka Apple).  Michael Kinsley, in particular, is as usual vibrant, his arguments are entertaining and his conclusions read as if seemingly inevitable.

Kinsley and McGurn both suggest that journalists from traditional media (daily newspapers, presumably) usurp the 1st Amendment as their own unique sword AND shield, most recently illustrated with an explosion of “shocking, just shocking!” at the Supreme Court’s Citizens United case recognizing strong 1st Amendment rights for corporations, and similarly the collective “huh?” in response to the more recent Gizmodo/Apple smackdown in California.  In Citizens United, the simple idea (as the Court did write) that the 1st Amendment really does prevent the government from playing favorites with speech OR with speakers – in and of itself, a full-throated empowering of the 1st Amendment – was lost in the din of criticism focusing instead on the seemingly pro-corporation and pro-money line-up of the Justices.

In the Gizmodo/Apple “situation”, much frothing was done over Apple’s “Gestapo-like” tactics, actions that would have made the Chicago Police blush.  Yet here too, a 1st Amendment angle was missed.  No, not the argument about bloggers being journalists: McGurn strongly supports Gizmodo’s argument that bloggers are in fact journalists and thus eligible for the same protections as more traditional media organizations.

Media types will argue – with some credibility – that for both historical and for good public policy reasons, the press MUST have a special place under the 1st Amendment.  And a problem – a serious one – for those opposing this view is a quick reading of the 1st Amendment itself, namely something about “Congress shall make no law … abridging the freedom of speech, or of the press”. This space today is not intended to be the place to debate the issue, suffice for now to say pretty clearly that the Amendment applies specifically to the press – not just freedom of speech.

But again, that issue is for another day.  Citizens United seemed to get under skins not for any challenge to the press, but to a seeming elevation of the 1st Amendment protections for speakers who were NOT the press.  To many observers, that in turn, seemed to challenge the “special” place of the press in American society simply by even hinting that others might share similar rights.  William McGurn in the Wall Street Journal put it this way:

These days, alas, too many journalists and politicians assume that a free press should mean special privileges for a designated class. The further we travel in this direction, the more the government will end up deciding which Americans qualify and which do not.

I think this is an apologist’s perversion of Citizens United.  As a lawyer working with and for new media individuals and companies, I am sympathetic to the arguments for a robust 1st Amendment and, in particular, special protections (including “shield” laws) for the press.  Kinsley and McGurn both offer excellent perspectives on the harm done to the press by the press itself with arguments and assumptions, to the effect, that (a) by virtue of these protections, “the press” must be given unquestioned and great deference and assumptions of infallibility – and immunity from laws such as libel, and (b) the idea, blossoming with blogs and microblogs and reduced barriers to entry into media through online publishing, that anyone who “publishes” is a journalist – and therefore is automatically eligible for these great protections.

Nonetheless, sensitivity to these problems must still recognize the realities of “new media”, a field which potentially includes a publisher group a LOT broader than news media and bloggers.