Thanks to the Obama administration’s attacks on the Associated Press and its representation in federal court that Fox News’ James Rosen is a spy for asking questions, one has to wonder whether the First Amendment applies to anyone in the Age of Hope and Change. Fox News host Chris Wallace asked Senator Dick Durbin whether Barack Obama’s promise to have Eric Holder look into cases of abuse that he personally approved represents a conflict of interest, but Durbin dodges that question and talks instead about the shield law proposed repeatedly over the last few years as the appropriate Congressional response to the scandal. However, Durbin asks what exactly “freedom of the press” means in 2013, and wonders aloud whether it would include bloggers, Twitter users, and the rest of the Internet media:

Here’s what the First Amendment actually says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Press at the time would certainly have meant newspapers, which were the high-tech information revolution of the day. It would also have included pamphleteers, perhaps even more than newspapers, as pamphleteers helped drive revolutionary sentiment. Their modern-day analogs would arguable be bloggers and Twitter users, those who reported news and proclaimed opinions outside of the establishment press.

However, Durbin’s asking the wrong question. The question isn’t who gets protected, but what. Journalism is not an identity or a guild, but an action and a process — and anyone engaged in that activity must be treated equally before the law. A shield law based on membership via employment in privileged workplaces or certified by guilds doesn’t protect journalism, it becomes rent-seeking behavior that ensures that only the large players get protected, as I wrote ten days ago.

Durbin’s question isn’t even the biggest non-sequitur in this argument. The biggest non-sequitur is the shield law itself, which wouldn’t have even addressed the Rosen or AP situation. And considering that the Obama administration ignored existing statutes in both cases, why should we believe they would obey a shield law when it got in their way?