Regarding the Julian Assange case, Glenn Greenwald makes an important point, that as a First Amendment question, it does not matter whether Assange is a journalist.
Press freedoms belong to everyone, not to a select, privileged group of citizens called “journalists.” Empowering prosecutors to decide who does or doesn’t deserve press protections would restrict “freedom of the press” to a small, cloistered priesthood of privileged citizens designated by the government as “journalists.” The First Amendment was written to avoid precisely that danger.
That is well said, and the reminder is both urgent and necessary at this particular moment in our history. Greenwald continues:
Most critically, the U.S. government has now issued a legal document that formally declares that collaborating with government sources to receive and publish classified documents is no longer regarded by the Justice Department as journalism protected by the First Amendment but rather as the felony of espionage . . . .
And there is the problem. If the First Amendment does not create a set of privileges for a caste known as “journalists,” then journalists can be prosecuted for violating the law — including the laws governing the dissemination of classified information — in the same way any ordinary citizen would be.
The dissemination of classified documents is illegal in many circumstances. It is, under what seems to me the plain meaning of the law, precisely the felony of espionage in at least some cases. To decline to prosecute those crimes in the interest of enabling journalism is to create exactly the kind of professional caste privilege that Greenwald rightly warns against. We cannot simultaneously hold that the problem is “empowering prosecutors to decide who does or doesn’t deserve press protections” and then try to solve that problem by empowering prosecutors to decide who does or doesn’t deserve press protections.
I am not a lawyer and do not pretend to speak authoritatively about the Assange case, but the language of the federal criminal code appears — to my great surprise — clear enough about this matter.
And that is the fundamental issue: The government has overly broad and sweeping power when it comes to classifying information, and it uses that power too eagerly and too thoughtlessly — and too arrogantly, and too corruptly — for that power to be fully compatible with a free and open society. The solution to bad laws is to repeal or reform the law, not to construct a supplementary social theory to support its selective application.
In keeping with Greenwald’s concerns, writing a journalism carveout into the statute would be a disastrous undertaking, because it would amount to licensing journalists, which would radically reconfigure the First Amendment and our understanding of free speech in an unacceptable way. That is one significant problem with “campaign finance” laws that subject political speech to legislative discipline and then pretend to make an exemption for news media.
The more reasonable approach — which is naturally the more difficult one — would be to acknowledge that the government has a legitimate interest in keeping certain secrets but to narrow its discretion and scope in making those decisions. One important reform would be to eliminate the executive’s effective monopoly on declassification decisions, moving some of that authority into the House of Representatives or the Senate.
And then, if the New York Times receives a classified document through a criminal act or comes into possession of a document the publication of which would be a criminal act, it can make an editorial decision about whether the importance of the story justifies an act of civil disobedience and, if it comes to it, dare the government to prosecute it. Many Americans have sat in jail cells for honorable causes.
If we accept the proposition that the government has a legitimate interest in keeping secrets and in using the law to further that end — and there are some radical libertarians who reject that — and we also accept that the First Amendment applies in the same way to all citizens, then it follows that there will be prosecutions for violating that law, and that acting as a journalist does not provide immunity from such prosecution.