Two cases – a world-renowned one in London and a lesser-known one in San Francisco – are ramping up legal pressure on the practices of journalists and the protections of journalism in public interest and national security matters. WikiLeaks founder Julian Assange faces extradition to the United States and prosecution here under the century-old Espionage Act, accused of soliciting and distributing national defense information he got by working with Army intelligence analyst Chelsea Manning. A Justice Department official contended that Assange “is no journalist.” And San Francisco police executed a search warrant with sledgehammers when they went after freelancer Bryan Carmody, to find out how he got his hands on the leaked death report of San Francisco’s public defender. The police chief apologized for “mistakes,” and the mayor has ordered an investigation.
With a long resume as a working journalist, Doreen Weisenhaus is now at Northwestern University, teaching both law and media ethics, as well as directing its media law and policy initiative. For her, the significant question in each case is not about who is a journalist so much as it is, what action is being taken that qualifies as journalism?
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The world of journalism has changed. The ethics, the standards, the rules haven't changed, but the world of reporting and its challenges have very much changed.
I think the ethical challenges are really encapsulated in these two cases that seem to be grabbing everyone's attention. Of course Julian Assange, and then having the indictment and the national security leaks and the publishing of that information, as well as the case involving the San Francisco journalist, or some would say freelancer who also provided journalistic information.
And that is, what is journalism today? And what are the ethical standards? Are they the same as they were in prior years? What are the duties and rights and responsibilities? Do they need to make sure that they curate information, or can they just dump information out?
A lot of press freedom issues, 1st Amendment issues used to be abstractions, and now they're very real, and are being tested. Can you give some examples of ethical dilemmas that we confront now that we might not have before?
I go back to the Julian Assange case. One of the issues that the indictment charged against Julian Assange was the fact that he encouraged sources to produce illegally obtained information. And the question is, is there any kind of ethical standard for that?
The New York Times, for example, on their website, they have instructions on how someone who might want to give them some document that shows some kind of government malfeasance, and offers different types of tech tools that allow them to maintain their anonymity and to encourage them to present this type of information.
Clearly the law definitely recognizes the difference. And it does not protect journalists who are involved in hacking to get information, or encouraging or instructing or directing someone to hack information. And that the journalist's activities would not be protected.
But there seems to be at times a fine line to what would constitute encouragement of those who might want to provide this type of information. And that is part of the bread and butter of what journalists do, to not just obtain information, but also to encourage those who have information to provide — particularly involving national security cases where there is no regular release of this type of information.
These are part of the lifeblood of any national security journalist, and trying to get secrets that the governments may not want to disclose.
The world of the internet has created the possibility of perhaps everybody becoming a publisher or a journalist. But is that all it takes, is having a website and hitting the send key?
No, I don't think so, necessarily. But it's difficult to try to define who a journalist is, and the last thing you want is someone like the government to define who is a journalist and who is not a journalist.
And of course in the Julian Assange case, they were quite clear in saying, oh, we could bring these charges against Julian Assange because he is not a journalist.
But the issue today is that it's quite different, right? That it’s the activity of gathering, assessing, creating and publishing news and information.
But the problem is that 1st Amendment protections do not depend on one's status as a journalist, that it does not issue these kind of special protections just to the press.
So you have to allow the opportunity that there might be more nontraditional actors in this current, expanded media ecosystem that didn't exist before the advent of the internet, for example.
So where does Julian Assange fit in this? This is a man who didn't seem to edit anything that he put out there in the way that journalists always do.
Let me answer your question with a question, and that is, what does constitute a journalist? Certainly we may disagree with the fact that he did not curate. We may think that there might have been some ethical issues.
It does not depend on what is the status of the individual. It's, what is the journalistic activity? Did he present information that is of national interest?
And certainly the hundreds of thousands of documents and information that came out during the Chelsea Manning leaks that made huge headlines — not just presented by Julian Assange but also picked up by all kinds of national media, the Washington Post, the New York Times, the Guardian, newspapers all over the world picked up that information.
I'm looking at the definition in the context of the law and what the law should protect and not protect.
And there seems to be this fine line between what Julian Assange did and what more traditional media have done. What makes this particular case so critical is that a big part of the charges were not involving the hacking of information, but the encouragement of Chelsea Manning to provide this information, which is what many traditional journalists do, and also the publishing of the information.
This appears to be it for the first time the U.S. government is prosecuting, under the Espionage Act, a publisher of classified documents. And that indeed is what Julian Assange did — publish this information.
I think the big concern is that some of these activities are definitely part of what journalists’ activities are considered legitimate in today's environment. And yet are these now going to be subject to these new types of prosecution?
Also, in the press briefing right after the indictment came down, a Justice Department spokesman said, we are very clear that this is not a journalist, and therefore the acts that we are alleging done by Julian Assange will not impact you.
But the truth is that in some of the charges, it is about pure publication, in that they focus only on Assange having posted these documents on the internet and don't depend on any other action, whether it's curated or not curated. So that whether they encourage the leak or receive the information, that's a first.
And that's why there's a lot of concern about what might be happening in the future, because this is opening a door. And many consider this kind of a watershed moment, particularly for organizations that want to report about national security issues.
What is new, of course, is this idea of applying this very old law, the Espionage Act, which was passed by Congress in a panic as the U.S. was entering World War I in 1917, to quash dissent. For over a hundred years it was never used to prosecute a media organization for publishing or disseminating unlawfully disclosed classified information.
What's at stake in the outcome for newsgathering, news reporting organizations?
Two big threats. Gabe Rottman, of the Reporters Committee [for Freedom of the Press], describes it in a way that I would like to quote: He calls this kind of an erosion of this informal detente between law enforcement, the military intelligence community and the media, that what the Trump administration has done is possibly even surpassing what had started in the Obama and Bush administration efforts, to bring charges against leakers based on the Espionage Act.
That aggression has to be hurting journalists where it counts: getting sources to give information on critically important work that's being done by their increasingly secretive government.
And the second impact is what others see as dangerous to those outside the U.S. We've seen over the last couple of years Trump's characterization that journalists are enemies of the people, and that’s encouraged authoritarian governments to step up their harsh treatment of their own media, knowing that the U.S. will not respond.
The killing of Washington Post writer Jamal Khashoggi had no impact whatsoever on White House policy.
So this may encourage an already existing trend of other authoritarian governments to continue prosecuting journalists for just publishing sensitive and secretive information.
If the American protections and high standards and high regard for journalism are deliberately degraded by the government, then in a way that takes away a standard of protection that other countries used to point to to say, we should be like the United States?
Even more practical: where the U.S. government used to insist that other countries respect human rights, respect press freedoms, they don't see that type of economic or political pressure on the part of the U.S. government.
It’s almost like a hands-off, you do your own thing, and the chips fall where they may.
I recently was giving training sessions in Asia and in Africa, and the reporters there report quite vividly that things are progressing in a more rapid pace in their own countries, knowing that there won't be any interference or pressure on the part of the U.S. government to respect press freedom issues.
The rhetoric that journalists are enemies of the people has definitely contributed to an atmosphere where violence and threats against journalists have escalated.
Last week, for example, a radio reporter in Alaska was assaulted while she was covering a demonstration at a Planned Parenthood clinic. A TV reporter in Florida was attacked this month while covering a routine burglary in a neighborhood. The bomb threats to CNN, online harassment of journalists. And so there is this real, direct impact on how journalists are doing their jobs.
But I have to say, at the same time, there is also this hunger and support for real journalism. There are many who are looking and trying to find ways to get legitimate information.
In the Bryan Carmody case in San Francisco, the police showing up with sledgehammers to break into the man’s place to look for documents, for records. The authorities themselves have walked this back but that still doesn't lay to rest the issue that came up first, which is, this is a man who listens to police scanners, goes out and takes pictures, gets information and then is in the service of news agencies selling that information to them — which is something that's been done for quite a long while by freelancers.
The question here initially was, was he a journalist. Was he not? Someone who has a history, as he did, of producing or finding journalistic material for many of the area's media outlets — it becomes indistinguishable in terms of, OK, so they publish it and they get protection.
It didn't quite make sense, and I think everyone was coming to that conclusion. And fortunately for Mr. Carmody, California has a very strong reporter shield law that defined anyone as a journalist who is “connected with or employed by a news organization.” And in this case, he clearly was connected with, because he had regular relationships in which he sold journalistic material to these news organizations.
Under the circumstances, it's too much to hope for a national shield law, which comes up from time to time.
I don't quite see it happening in the current congressional environment. I think the last proposal was two years ago, and much discussion about this issue of defining who a journalist was. They were trying to define a journalist by someone who made a certain percentage of his or her income in journalistic activity, which of course could be a high bar for someone who might be doing other things to support themselves, but at the same time might be performing an act of journalism.
What will you be watching for in particular in the proceedings against Assange?
We are watching in particular whether he actually ever ends up getting extradited to the U.S. I would like to know more about some of the underlying intentions on the part of the government in looking at this case.
And another issue might be any further action on the part of the government. Joel Simon, [the executive director] of the Committee to Protect Journalists, [said] there might be dangers to others outside the U.S., where anybody writing about U.S. national security could be vulnerable.
You have to remember, Assange is not a U.S. citizen. He was Australian. Every act he did was outside the U.S. And so this idea of an extraterritorial jurisdiction in a publishing case is usually for terrorism or piracy.
But now, can anyone in the world be prosecuted for publishing what the U.S. considers to be classified information involving the U.S.? Is there this kind of threat about other cases that might be brought in the future?
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