Why the First Amendment didn’t save a Mississippi blogger

[Commentary] Clayton Kelly wanted to break through as a blogger and expose some dirt on a politician he disliked. Now, he is headed to prison after pleading guilty to one count of conspiracy. So what exactly did Kelly do? He used his cellphone to shoot a few seconds of video of the politician's wife in her room, and later he posted the video -- very briefly -- on his blog. Kevin Camp, Kelly’s lawyer, had argued that his client’s intent in recording and publishing the video was to engage in protected political speech about the politician's purported relationship with a longtime staffer. “This brings up all sorts of free-speech issues,” Camp said. “There was never any intent to harm.” That argument didn’t carry the day.

In court, the judge declared, “This is not a case about the defendant’s First Amendment rights; it’s about whether or not he did what he’s been charged with.” The prosecutor added, “A reporter can’t break into someone’s home to take a picture of them. You can’t commit a crime under the First Amendment.” It’s true, as I’ve written before, that the speech and press clauses focus on the right to publish, and the protections for gathering information are less clear. The argument that Kelly was free to record the politician's wife -- in her private room, in a nursing home -- is an uphill one to make, especially if he gained access through deceit. It’s also true that if a person faces valid criminal charges, the First Amendment is not very helpful as a defense.