When WikiLeaks made its first big media appearance by publishing tens of thousands of top-secret diplomatic cables in 2010, we argued that the group headed by controversial front man Julian Assange was a media entity, albeit an unusual one. The broader implications of this status extend far beyond the question whether we support the organization or its motives: As a blog post at the Electronic Frontier Foundation points out, threats aimed at WikiLeaks are by implication also threats to any other media outlet that dares to publish government information. And some members of Congress say they want to make this connection explicit by changing laws so that journalists can also be sanctioned.
In his post, Trevor Timm notes that signs have been accumulating for some time now that members of the government are looking for ways to go after journalists who publish official secrets. During a recent hearing of a House Judiciary subcommittee, several members of Congress questioned legal experts about whether existing laws, such as the Espionage Act, could be used to target journalists who published classified information. As Representative Trey Gowdy (R-S.C.) put it to the committee:
“Put them in front of the grand jury. You either answer the question or you’re going to be held in contempt and go to jail, which is what I thought all reporters aspire to do anyway.”
According to the legal scholars who attended the hearing, going after a journalist or a media entity such as the New York Times would be difficult because of the First Amendment and protection for freedom of the press—but at least one commenter said he believed that under certain circumstances, journalists could be prosecuted for publishing government secrets, provided it could be shown they knew the consequences of their actions would affect national security. Said Kenneth Wainstein:
“If someone acting with impunity and knowledge of the consequences goes ahead and publishes it, that is something that I think would be worthy of prosecution and punishment.”
This is more than just some idle speculation by hawkish members of the judiciary subcommittee: As Timm points out in his EFF post, a senior Justice Department official told the Washingtonian recently that journalists who speak to government sources about top-secret information should be careful, because doing so could “put them at risk of prosecution.” In the wake of the diplomatic-cable incident, Senator Joe Lieberman (I-Conn.) also proposed something called the Shield law, which would make it a crime for anyone to publish classified information that might be “contrary to the national interest,” legislation he continues to promote.
When WikiLeaks was initially targeted by the Justice Department for investigation under the Espionage Act, there was very little criticism of the move, either from traditional media outlets such as the New York Times (which has had a somewhat fractious relationship with WikiLeaks in the past) or from free-press advocates. It was as though no one wanted to admit that the same forces that were going after WikiLeaks for revealing government data could just as easily be directed at mainstream journalists. Now those particular chickens appear to be coming home to roost.
Obviously, there are differences between what the New York Times does and what WikiLeaks does, as I discussed in an earlier post on this topic: The NYT is a major media operation, with thousands of trained journalists around the globe and an established track record of factual reporting, and WikiLeaks is a relatively new and poorly understood operation run by a controversial figure and backed by donations (donations that were shut down when payment-processing outfits such as Visa, MasterCard, and PayPal refused to deal with WikiLeaks).
The fundamental purpose of both organizations, however, is very similar: to acquire and publish important information about important or newsworthy global events, information that frequently comes from sources inside the government leaking classified intelligence. That similarity of purpose is why legendary leaker Daniel Ellsberg said WikiLeaks’ handling of the diplomatic cables was the closest thing he had seen to the Pentagon Papers, and it’s why journalism professor Jay Rosen described the entity as “the world’s first stateless news organization.”
As Timm notes, the kind of legislative attack that Congress and the Justice Department seem to be intent on pursuing is a threat to media entities of all kinds—both traditional forms like the New York Times as well as newer iterations like WikiLeaks. That doesn’t mean mainstream media outlets have to allow Assange to become a member of the National Press Club, but it does mean they should be a lot more concerned about what the investigation of WikiLeaks portends for freedom of speech and a free press.
Also from GigaOM:
The Justice Department Thinks Differently (subscription required)