Yes, he’s a jour­nal­ist, too

NYU’s Adam L. Pe­nen­berg ex­plains why As­sange’s work mer­its press pro­tec­tions

The Washington Post Sunday - - OUTLOOK - Adam L. Pe­nen­berg is an as­so­ci­ate pro­fes­sor of jour­nal­ism at the Arthur L. Carter Jour­nal­ism In­sti­tute at New York Uni­ver­sity and chair of the in­sti­tute’s ethics com­mit­tee.

The State Depart­ment called Ju­lian As­sange, the founder of the state­less anti-se­crecy or­ga­ni­za­tion Wik­iLeaks, “an an­ar­chist.” Sarah Palin taunted him as “an anti-Amer­i­can op­er­a­tive with blood on his hands.” Se­nate In­tel­li­gence Com­mit­tee Chair­man Dianne Fe­in­stein (D-Calif.) de­clared As­sange an “ag­i­ta­tor in­tent on dam­ag­ing our govern­ment.” And Rep. Dar­rell Issa (R-Calif.), the new head of the House over­sight com­mit­tee, plans hear­ings on Wik­iLeaks and has blasted At­tor­ney Gen­eral Eric Holder for not crack­ing down on the group.

His crit­ics may not agree on what As­sange is, but no mat­ter where they fall on the po­lit­i­cal spec­trum, they agree on what he is not: a jour­nal­ist. There­fore nei­ther he nor Wik­iLeaks should ex­pect First Amend­ment pro­tec­tions for the unau­tho­rized re­lease of sen­si­tive, em­bar­rass­ing and clas­si­fied diplo­matic and mil­i­tary doc­u­ments.

Nat­u­rally, As­sange, a 39-year-old Aus­tralian com­puter hacker, po­lit­i­cal ac­tivist, soft­ware de­vel­oper and thorn in the side of se­crecy-ob­sessed gov­ern­ments, sees him­self in a dif­fer­ent light — as an edi­tor and pub­lisher. And in a pre­emp­tive strike against U.S. au­thor­i­ties, As­sange has wrapped him­self in the cloak of jour­nal­ism. Per­haps that’s why Wik­iLeaks has pep­pered its “about” page with the words “jour­nal­ism” and “jour­nal­ist,” which ap­pear a com­bined 19 times, and as a self-de­scribed “not-for­profit me­dia or­ga­ni­za­tion” lists its pri­mary goal as bring­ing “im­por­tant news and in­for­ma­tion to the pub­lic.”

Bill Keller, ex­ec­u­tive edi­tor of the New York Times, wrote in a new Times Mag­a­zine ar­ti­cle that, in work­ing with As­sange to pub­lish rev­e­la­tions from Wik­iLeaks’ cache of doc­u­ments, he al­ways con­sid­ered him a source, not a col­lab­o­ra­tor— or a jour­nal­ist. But there is no clear def­i­ni­tion of the terms “jour­nal­ist” or “jour­nal­ism.” The best we have comes from laws and pro­posed leg­is­la­tion which pro­tect re­porters from be­ing forced to di­vulge con­fi­den­tial sources in court. In craft­ing those shield laws, leg­is­la­tors have had to grap­ple with the neb­u­lous­ness of the pro­fes­sion to de­ter­mine who and what must be pro­tected, and why.

Based on the word­ing of many of these statutes, As­sange fits the def­i­ni­tion of a jour­nal­ist, and what Wik­iLeaks does qual­i­fies as jour­nal­ism. This presents a sig­nif­i­cant chal­lenge for Holder, who has launched a crim­i­nal probe and “per­son­ally au­tho­rized” a num­ber of steps “ to hold peo­ple ac­count­able” for the doc­u­ment leaks.

In the United States, there is am­ple statu­tory author­ity for pun­ish­ing in­di­vid­u­als who leak clas­si­fied in­for­ma­tion, but the Jus­tice Depart­ment has never pros­e­cuted a jour­nal­ist for re­port­ing on a leak. How could pros­e­cu­tors go af­ter Wik­iLeaks while spar­ing the New York Times, as well as the Guardian in Bri­tain, Ger­many’s Der Spiegel, Le Monde in France and El Pais in Spain, all of which pub­lished ar­ti­cles based on the cache of State Depart­ment ca­bles that Wik­iLeaks pro­vided?

To fur­ther com­pli­cate mat­ters, a Wik­iLeaks com­peti­tor called OpenLeaks, founded by two for­mer Wik­iLeaks staffers, just launched, and a num­ber of other like-minded leak-anonymiz­ing clear­ing­house sites are also in the works. Al-- Jazeera re­cently ginned up its own Wik­iLeaks-like repos­i­tory for whistle­blow­ers. Along with the Guardian, it be­gan pub­lish­ing ar­ti­cles about its first score, more than 1,600 doc­u­ments from a decade of Is­raeli-Pales­tinian peace talks. The New York Times may fol­low suit. Leak­ing, or court­ing leak­ers the way As­sange does, is fast be­com­ing the prov­ince of the jour­nal­is­tic es­tab­lish­ment.

About two-thirds of the states have adopted shield laws, vir­tu­ally all of them draw­ing a clear line be­tween pro­fes­sional jour­nal­ists and ev­ery­body else. Some are sur­pris­ingly ex­pan­sive in their def­i­ni­tions of the “news me­dia” and in­clu­sive in whom they cover. Min­nesota, for in­stance, seeks to pro­tect the “free flow of in­for­ma­tion,” as does Ne­braska. The District of Columbia views news me­dia as “any printed, pho­to­graphic, me­chan­i­cal, or elec­tronic means of dis­sem­i­nat­ing news and in­for­ma­tion to the pub­lic.”

New York of­fers pro­tec­tion to any­one “en­gaged in gath­er­ing, pre­par­ing [or] col­lect­ing . . . news in­tended for a news­pa­per, mag­a­zine, news agency, press as­so­ci­a­tion or wire ser­vice or other pro­fes­sional medium or agency which has as one of its reg­u­lar func­tions the pro­cess­ing and re­search­ing of news in­tended for dis­sem­i­na­tion to the pub­lic.” Michi­gan casts an even wider net, be­stow­ing the ti­tle of jour­nal­ist on any­one “in­volved in the gath­er­ing or prepa­ra­tion of news for broad­cast or pub­li­ca­tion.”

It’s al­most as if the law­mak­ers had Wik­iLeaks in mind when they crafted these statutes. As for states with shield laws that would prob­a­bly not cover Wik­iLeaks, theirs have not been up­dated in decades. They missed the rise of 24-hour cable news, cit­i­zen jour­nal­ism and so­cial me­dia. Those states rec­og­nize nar­rower def­i­ni­tions of jour­nal­ism, grav­i­tat­ing to­ward de­cid­edly “main­stream me­dia” in­ter­pre­ta­tions.

Not only do they ex­clude Wik­iLeaks, they ig­nore on­line re­porters, blog­gers, book au­thors, free­lance writ­ers and even mag­a­zine staffers. In In­di­ana, a jour­nal­ist is some­one “con­nected with or em­ployed by” a news­pa­per, wire ser­vice, or “ li­censed ra­dio or tele­vi­sion sta­tion,” pe­riod. Ken­tucky opts for even greater sim­plic­ity: “News­pa­per, ra­dio or tele­vi­sion broad­cast­ing sta­tion per­son­nel need not dis­close source of in­for­ma­tion.” By im­pli­ca­tion, ev­ery­one else would.

The House of Rep­re­sen­ta­tives in 2007 passed a fed­eral shield law, which in­cluded a last-minute amend­ment that re­quired any­one seek­ing pro­tec­tion to earn “a sub­stan­tial por­tion of [their] liveli­hood” from jour­nal­ism. This was a dart aimed at blog­gers, who were, depend­ing on your point of view, ei­ther cit­i­zen jour­nal­ists de­moc­ra­tiz­ing me­dia or blovi­at­ing loud­mouths post­ing vit­ri­olic screeds on per­sonal Web sites be­tween trips to the re­frig­er­a­tor. As the Se­nate has worked on its ver­sion of a shield law, how­ever, blogs have moved even fur­ther into the main­stream, partly be­cause vir­tu­ally ev­ery news­pa­per, mag­a­zine and on­line news or­ga­ni­za­tion co-opted them for their own sites.

Over the past few years one of the bl­o­go­sphere’s po­lit­i­cal cham­pi­ons has been Sen. Charles Schumer (D-N.Y.), the lead author of the Se­nate mea­sure. Ini­tially he tried to ex­pand on the lan­guage in the House bill by defin­ing a jour­nal­ist as any per­son who has the in­tent to dis­sem­i­nate in­for­ma­tion to the pub­lic. (This sounds a lot like Wik­iLeaks’ stated mis­sion.) But to get the bill through com­mit­tee, he scaled back the lan­guage so that his ver­sion mir­rored the House mea­sure.

In Au­gust, af­ter Wik­iLeaks re­leased 91,000 doc­u­ments re­lated to the war in Afghanistan, Schumer an­nounced that he would amend the Se­nate’s “Free Flow of In­for­ma­tion Act” to ex­clude the group. Schumer con­tended that Wik­iLeaks could never cap­i­tal­ize on the leg­is­la­tion be­cause it does not ful­fill the “def­i­ni­tion of a jour­nal­ist,” which re­quires it to reg­u­larly en­gage in “ le­git­i­mate news­gath­er­ing ac­tiv­i­ties.” The bill al­ready would give judges the author­ity to waive pro­tec­tions if crit­i­cal na­tional se­cu­rity con­cerns hung in the bal­ance. But just in case, Schumer and Fe­in­stein have been work­ing with the news­pa­per in­dus­try on lan­guage to pre­vent Wik­iLeaks from shim­my­ing through any loop­holes.

It’s a daunt­ing task — to get the word­ing just right, they’ll need an elec­tron mi­cro­scope. What con­sti­tutes “ le­git­i­mate news­gath­er­ing ac­tiv­i­ties”? How do you dif­fer­en­ti­ate be­tween what Wik­iLeaks does and what the New York Times does? The Times, like other news out­lets, of­ten re­lies on sources pass­ing on con­fi­den­tial— even clas­si­fied— in­for­ma­tion that it makes pub­lic, and it has pub­lished a se­ries of ar­ti­cles based on the doc­u­ments that Wik­iLeaks pro­cured.

As for crit­i­cal na­tional se­cu­rity con­cerns, thus far, the Pen­tagon has con­ceded that the re­lease of the Afghan war doc­u­ments has led to very limited, if any, tan­gi­ble harm. The roughly 2,000 diplo­matic ca­bles that Wik­iLeaks has col­lab­o­rated with me­dia or­ga­ni­za­tions to pub­lish also ap­pear to have been more em­bar­rass­ing than de­struc­tive to U.S. for­eign pol­icy in­ter­ests.

Times edi­tor Keller, who worked closely with As­sange, has said that if As­sange is “a jour­nal­ist, he’s not the kind of jour­nal­ist that I am,” nor is Wik­iLeaks “my kind of news or­ga­ni­za­tion.” It’s not, how­ever, Keller’s or Schumer’s def­i­ni­tion of jour­nal­ism that is rel­e­vant. It’s the def­i­ni­tion un­der the law. That makes As­sange, whom Keller de­scribed as “ar­ro­gant” and “con­spir­a­to­rial,” very dif­fi­cult — if not im­pos­si­ble — to pros­e­cute.

As­sange has given Amer­i­can politi­cians and pun­dits mi­graines by us­ing the govern­ment’s own words and doc­u­ments against it. If the Obama ad­min­is­tra­tion chooses to pros­e­cute, As­sange will prob­a­bly use its own laws against it, too.

CARL DE SOUZA/AGENCE FRANCE-PRESSE VIA GETTY IM­AGES

It may be vir­i­tu­ally im­pos­si­ble for the United States to pros­e­cute Wik­iLeaks founder Ju­lian As­sange, seen here in London.

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