Excerpt from The New Censorship - Inside the Global Battle for Media Freedom by Joel Simon
Journalists by Definition
Journalists who report the news are exercising a fundamental human right. But they are also contributing to the creation of more informed societies. In the best cases, they are exposing corruption and human rights violations, making it possible to address these abuses and contributing to global peace and security. This is why their work must be protected.
The acceptance of this basic premise invites an inevitable question: Who, precisely, is a journalist? It’s a question that has never been easy to answer. Journalists, unlike lawyers or doctors, don’t require a license or in most cases a degree to practice their profession. They may work for an established media organization, but they don’t have to. They may be objective and balanced—but then again they may not be. They may be highly ethical, professional, and committed to the truth. Or they may be sloppy, ignorant, and in extreme cases corrupt.
The question of who is a journalist surfaces nearly every day at CPJ, and many of the cases we grapple with are extremely thorny. Our experience has shown us that a rigid definition of what constitutes journalism is unhelpful for several reasons. First, because technology is constantly changing the way journalism is practiced, any understanding of who is a journalist must constantly evolve. Second, because judging what is and what is not journalism depends so much on the context. For example, CPJ has classified dissident bloggers in places like Cuba, China, and Burma as journalists precisely because access to the state-controlled media is closed. In more open societies, we might not make the same determination.
Making a judgment about who is and who is not a journalist is more straightforward when you look at individual cases of violations or abuses. At CPJ we ask ourselves some basic questions, such as: Was the person documenting facts or events? Was the person engaged in fact-based commentary? Were authorities seeking to suppress the events or issues in question? Is the individual’s work being disseminated to the public? Then we look at specific work, relying on the expertise of regional staff to access and evaluate the material in the local language.
The easier question to answer is what is not journalism. Poetry, fiction, and political campaign speeches are all forms of expression but do not qualify as journalism. While CPJ does not make judgments about the point of the view or even quality in making a determination—after all, international law equally protects well-documented investigative pieces and shoddy, partisan rants—we do exclude any journalism that crosses the line into incitement to violence. What constitutes incitement to violence under international law is discussed in the next chapter, but these distinctions are among the most difficult and controversial.
In recent years, the challenge has been to differentiate journalism from activism, particularly in the Middle East where traditional media has become much more polarized and where activists have exploited new technologies to enter the journalistic fray. When I visited Cairo in March 2013, during the waning months of the Mohamed Morsi government, I found the lines thoroughly blurred. This was a time when mainstream journalists had turned against the regime and authorities had responded with lawsuits and intimidation. When I asked some of Egypt’s most prominent media figures to explain the difference between journalism and activism, most described the exercise as futile. “As a journalist, your job is to seek the truth and defend your freedom, and that makes you an activist in this environment,” said Ibrahim Eissa, one of Egypt’s best-known editors and political commentators. “You will confront the government simply trying to defend your rights as a journalist. So you are not changing your description—you are just operating in a different state.”1
Eissa has considerable authority on the issue. He was one of Hosni Mubarak’s fiercest critics, twice convicted on journalism-related charges. After Mubarak was toppled, he and two partners established a new broadcaster appropriately named Tahrir TV. He eventually sold his shares in the station and later resigned as a commentator when it changed its editorial line. He continued to edit a newspaper, also called Tahrir, and to serve as a regular TV commentator despite an onslaught of threats and public denunciations from Morsi supporters. “There is no press freedom in Egypt, either before or after the revolution,” Eissa said at the time. “There is simply the courage of journalists.”
The journalist and talk show host Reem Maged agreed. She gained acclaim for standing with the protesters in Tahrir Square. In early 2013, she faced charges of “disseminating false information about judges through the media.” She tried her best to draw a distinction between her on-air journalistic persona and her participation in political protests. “I consider myself a journalist, but in the street I’m an activist, and I have positions,” she said. “It’s really difficult to separate the two.”
Meanwhile, one of the country’s most prominent social media activists insisted that she was not a journalist at all. Esraa Abdel Fattah helped launch the April 6 Movement to support a celebrated workers’ strike. The group’s innovative use of social media, particularly Facebook, eventually helped galvanize opposition to the Mubarak regime among the young and wired and laid the groundwork for the Tahrir Square uprising. Abdel Fattah was arrested not long after the April 6 group launched when authorities tracked her down at an Internet café. She was held for two weeks and then released.
During the Morsi government, Abdel Fattah said social media had become “even more important.” Her Twitter feed—followed by more than 220,000 people—consisted of a steady diet of outrage and documentation, photos and updates, commentary, and curated news. Abdel Fattah also published a regular newspaper column.
Despite this informational output, Abdel Fattah said she was not a journalist because she is not objective. “When I cover the women’s march I support what the women are doing, so yes I have a point of view,” she noted, as an example. But journalists like Eissa or Maged, despite their mainstream credentials, were hardly objective either, and I could not make a meaningful distinction between their role and hers.
The convergence of journalism with activism is a phenomenon not only in post-Mubarak Egypt but throughout the Middle East and the world. At a March 2013 meeting in Doha, Qatar, in which press freedom activists gathered to develop a collective strategy for responding to the violence in Syria, a heated discussion broke out about what constitutes journalism in an environment in which professional reporters work alongside a new generation of online communicators who dub themselves “media activists.” Using social media and public platforms like YouTube, these activists have provided firsthand accounts of the fighting, the toll, and daily life in a war-ravaged country but make no claim to objectivity. Some are fairly journalistic in their approach, and others are essentially propagandists for the rebel forces. A few are armed and participate in combat.
To give a few additional examples from other parts of the world, in China, a leading blogger, Zhou Shuguang, who uses the online moniker Zola (a nod to the French writer-journalist), has traveled around the country with a video camera documenting injustice but insists, “I don’t know what journalism is. I just record what I witness.” In Vietnam, a blogger named Nguyen Van Hai who took a similar approach was given a twelve-year jail sentence. In Turkey, while mainstream media ignored the Gezi Park protesters, activists using Twitter and other social media became the essential source of independent news. Even New York police seeking to control access to the Occupy Wall Street protests struggled to differentiate between accredited journalists and sympathetic citizens who used smartphones to disseminate news and information to the public.
In an era in which technology has changed everything about the way news is gathered and delivered, is it possible to draw a line between journalism, activism, and other kinds of speech? And is it necessary to do so? The answer is extremely significant for several reasons. First, because it directly affects the way journalists themselves understand their role. Are the rights of journalists distinct from others who provide information and commentary? Is the ability of journalists to perform their role as media professionals dependent on preserving some sort of distinction? Second, because it goes to larger questions about the kind of global information environment that would best preserve and even expand the accountability, oversight, and transparency that have historically been the function of independent media.
Journalists Defending Journalists
In order to answer these questions it is helpful to understand the origins and evolution of the global press freedom movement, which emerged along two parallel tracks. In the late 1970s, media industry groups came together to fight a proposal from UNESCO to create what was termed the New World Information and Communication Order, or NWICO. The purported goal of NWICO was to address inequalities in global communications structures between the West and the developing world, for example the fact that news agencies based in New York, London, and Paris set the global news agenda. But the findings of the specially appointed McBride Commission, which developed the NWICO guidelines, fueled an intensive debate that reverberated across the ideological divide. The Soviet bloc and the nonaligned countries argued that NWICO justified state involvement in the media sector to correct imbalances. There was even talk of government-established ethical standards to guide media conduct. This was a prospect that industry groups like the World Association of Newspapers, the International Press Institute, and the Inter-America Press Association believed would compromise independent media, and they formed a lasting alliance under the World Press Freedom Committee that eventually helped defeat the NWICO proposal. The U.S. government opposed NWICO and in 1984 withdrew from UNESCO in protest. It rejoined the organization in 2003.
At the same time that industry groups were joining forces to fight NWICO, the emerging human rights movement was having a significant effect on international journalists and their coverage of global issues. Post–World War II foreign correspondence by the U.S. media had focused on war and diplomacy. This had started to change during the Carter administration, with its emphasis on the promotion of human rights. By the late 1970s and early 1980s, independent human rights groups like Amnesty International and the newly created Helsinki Watch (which became Human Rights Watch) had begun to raise awareness about the persecution of dissidents behind the Iron Curtain and the widespread use of torture and disappearance by the military governments in Latin America. Among those subjected to violent persecution were journalists themselves, over one hundred of whom were abducted and disappeared in Argentina alone. Journalists and media organizations in the United States were obviously alarmed about these abuses, but many felt that reporting on—much less embracing—human rights could undermine their status as impartial observers. They continued to view human rights as an activist cause.
This was the landscape in 1981 when a Paraguayan journalist named Alcíbiades González Delvalle toured the United States as a part of a State Department–sponsored visitors program. As a columnist for the Asunción-based daily ABC Color, González Delvalle had repeatedly clashed with the government of its dictator, Alfredo Stroessner. The U.S. visit was supposed to be a reprieve, and it was until González Delvalle learned that an arrest warrant had been issued against him in Paraguay in response to his critical columns. The Paraguayan government wanted to force him into exile, but González Delvalle was determined to go home and face the charges. “The other South American dictatorships were spectacular, but Stroessner was sneaky,” González Delvalle recalled in an interview years later. “We needed to bring what was happening there to the attention of the world.”2
Laurie Nadel, a writer for CBS News in New York, read a one-paragraph Reuters story about González Delvalle and was moved by his ordeal. Concerned, she made a call to Michael Massing, then the executive editor of Columbia Journalism Review, and asked him if he would be interested in a story. He was, but the two also decided they needed to do more. They alerted U.S. foreign correspondents based in Latin America of González Delvalle’s imminent arrest. Not long after González Delvalle flew back to Paraguay in June 1980, Paraguayan plainclothes police grabbed him off a downtown street and hauled him by the belt into a waiting taxi. At that point, the network of international support that had been mobilized kicked into gear. Reuters and ANSA, the Italian news agency, filed stories on his arrest. Warren Hoge, the New York Times South America correspondent based in Brazil, flew to Paraguay. His June 27 report in the New York Times datelined Asunción began, “The government of Gen. Alfredo Stroessner has arrested a prominent Paraguayan journalist here just hours after he returned from a visit to the United States sponsored by the United States government.”3
It took seventy days for the Paraguayan government to succumb to the international pressure. On September 2, González Delvalle was released from jail and went right back to writing his column. He did not hold back and was arrested once again on September 23, 1983, and jailed for more than two months. In March 1984, Paraguayan police raided ABC Color, ransacked the newspaper’s offices, and arrested the publisher, Aldo Zuccolillo, who was jailed briefly. ABC Color remained closed for five years, until the Stroessner dictatorship collapsed in 1989, by which time the general had spent thirty-five years in power.
The response to González Delvalle’s arrest suggested that by covering human rights abuses committed against their less-fortunate colleagues, international journalists could help keep them safe. This was a kind of activism that many journalists initially resisted. But for U.S. journalists especially—who were at the height of their power in the post-Watergate era—standing up for their colleagues facing persecution from authoritarian governments increasingly seemed like the right thing to do. Massing and Nadel institutionalized this kind of support when they founded the Committee to Protect Journalists in 1981. They also succeeded in bringing some of the most prominent names in American journalism onto the board. Among them were Victor Navasky, the editor of the weekly Nation; the New York Times columnist Anthony Lewis; Jane Kramer from the New Yorker; the CBS News anchor Dan Rather; and Peter Arnett, who had left the AP to join the newly launched CNN. Walter Cronkite agreed to serve as the honorary chairman. In March 1981, Arnett publicly announced the creation of CPJ, explaining that the goal of the new organization was “to gather and disseminate information about the plight of American and local reporters in foreign nations that are systematically abusing press rights. We want to be a link between journalists and human rights concerns where it involves abuses of reporters.”
Four years later, in 1985, Robert Ménard and several colleagues founded Reporters sans frontières, or Reporters Without Borders, in Montpellier, France. The original goal of RSF was to promote media coverage of humanitarian emergencies, but after a shakeout that left Ménard the sole leader of the organization, he shifted its mandate and began to focus exclusively on press freedom and defense of journalists around the world.4 In 1992, a dozen press freedom and freedom of expression organizations—including CPJ, RSF, Article 19, Index on Censorship, and the Canadian Committee to Protect Journalists (later Canadian Journalists for Free Expression)—met in Montreal, Canada, and together formed the International Freedom of Expression Exchange, or IFEX, whose initial purpose was to coordinate work and share information. IFEX soon expanded to become a network of organizations working on the global, regional, or national level to advocate for freedom of expression. IFEX also helped nurture new member groups around the world and today consists of more than eighty organizations, most of which operate at the national level.5
By the mid-1990s the original resistance on the part of journalists and global media organizations to covering press freedom violations around the world had been largely overcome, and attacks on journalists were seen as newsworthy events in their own right. Coverage of attacks on the media tended to emphasize the unique and critical role that journalists play as impartial observers. Such a framework worked reasonably well so long as it was possible to make distinctions between journalists and nonjournalists. But that challenge grew as new technologies began to transform the media industry. The advent of blogs and online media raised new questions. As the volume, complexity, and speed of information increased, the process of defining journalism has become more and more unwieldy. The trend has accelerated in the last several years, with the explosion of social media and its increasing use to accomplish basic journalism: documenting events and disseminating information to the public.
Some traditional journalists are deeply uncomfortable with the blurring of lines, which they feel undermines the integrity of the profession while also making coverage of conflict more dangerous. NBC’s chief foreign correspondent Richard Engel told the U.N. Security Council during its July 2013 briefing on journalist security, “Protecting journalists these days is hard, perhaps harder than ever, because one has to tackle the question of who is a journalist and who is an activist in a way that never existed before.”
Engel lamented the ways in which the advent of social media has eviscerated the special status that international correspondents once enjoyed, eliminating distinctions among professional journalists, activists, and “rebels with cameras” and “state broadcasters,” who are “fundamentally different from journalists.” “If one cannot or will not write an article that goes against one’s cause, then one is not a journalist and does not deserve to be treated like one,” Engel explained. He proposed that the diplomats on the Security Council make a distinction between the broad defense of freedom of expression and the defense of “dedicated and trained professionals who take risks to deliver the kind of information council members need to make their decisions.”
But inviting governments to differentiate journalists from nonjournalists would set a dangerous precedent. Many governments—Turkey, Egypt, China, and Venezuela, to cite some examples—seem to believe “journalists” support government policies while “activists” oppose them. Journalists and media freedom organizations have long resisted any effort by governments or government-controlled bodies like the United Nations to define who is and who is not a journalist, arguing that such a distinction is tantamount to licensing, which is anathema to the journalism profession.
Indeed, journalists themselves are divided on the issue, with opinion writers and columnists tending to take a more expansive view. The New York Times columnist Nick Kristof argues that a press freedom group needs to be “as broad as possible when thinking about its mission and role.” “It would be pusillanimous if they helped only full-time journalists and let everyone else take the heat,” he argued. “You need to speak up for everyone even if you don’t call them journalists.”
In the last three decades, the way in which journalists define their role has evolved considerably. Defending the human rights of persecuted colleagues, once viewed as activist special pleading, is now widely accepted. But today, precisely because the distinction between journalists and nonjournalists has broken down so dramatically, journalists are confronting a new dilemma: Should journalists more broadly embrace the freedom-of-expression cause? Or should they speak out—as Engel suggests—only in defense of their professional colleagues?
The Assange Conundrum
This debate played out in dramatic fashion beginning in April 2010, when WikiLeaks released a video provocatively labeled “Collateral Murder.” The video showed the crew of a U.S. helicopter gunship in Iraq opening fire on a group of Iraqi men who had been identified as insurgents, some of them armed. A journalist and media assistant from Reuters who were with the group were both killed. A van that tried to rescue the wounded media worker also came under fire. Two children inside the van were wounded, and their father, the driver, was killed.6
WikiLeaks was cofounded by Julian Assange in 2006, with the goal of making public documents of “political, ethical, diplomatic, or historical significance,” a description that of course covers just about everything. It was originally conceived of as a “wiki,” meaning anyone could contribute, but that approach was later abandoned in favor of a format in which confidential documents were submitted through a secure electronic drop box, then evaluated before publication. In its first years, WikiLeaks scored several major “scoops,” with the release of confidential documents ranging from Swiss banking records to the personal e-mails of Sarah Palin.7
But it wasn’t until the “Collateral Murder” video that WikiLeaks garnered widespread public attention. The video—which Reuters had tried to obtain unsuccessfully from the Pentagon under the Freedom of Information Act—was provided to WikiLeaks by a disgruntled low-level military intelligence analyst named Bradley Manning. Manning also shared with WikiLeaks hundreds of thousands of confidential State Department cables that WikiLeaks began publishing in November 2010 under the heading “Cablegate.” While Assange has never publicly acknowledged that Manning was the source of the leaks, Manning pleaded guilty in February 2013 to leaking classified information to WikiLeaks. Military prosecutors, however, continued to pursue more serious charges against Manning, and in July 2013 they won a conviction on six counts of violating the Espionage Act (Manning was acquitted on the most serious charge, aiding the enemy). The day after being sentenced to thirty-five years in prison, Manning announced that he was female and would be known henceforth as Chelsea.8
To maximize public interest and attention, Assange made deals with leading international media organizations, including Der Spiegel, El País, Le Monde, and the Guardian, all of which were provided with advance copies of the leaked cables. Fearing legal consequences for publishing the cables in the United Kingdom, the Guardian decided to share them with the New York Times. As the Guardian editor Alan Rusbridger described the arrangement he made with the Times editor Bill Keller: “You’ve got the First Amendment, we’ve got the memory stick.”9
The publication of the cables set off a firestorm, with various U.S. political figures denouncing Assange as a “high-tech terrorist” (Mitch McConnell and Joe Biden) and “an enemy combatant” (Newt Gingrich). Sarah Palin, perhaps still smarting over the public release of her personal e-mails, posted a rant on Facebook on which she asserted that Assange “had blood on his hands” and should be hunted down with the same urgency as Osama bin Laden. Under intensive political pressure—notably from former Connecticut Senator Joe Lieberman—MasterCard and PayPal said they would not process online donations to the organization, and Amazon announced it would no longer support the WikiLeaks site through its commercially available webhosting service. WikiLeaks was able to find a new home, and hundreds of groups around the world launched “mirror sites” that duplicated the published material and made it almost impossible to take offline. Lieberman also called for Assange to be prosecuted under the 1917 Espionage Act, which criminalizes obtaining, copying, or communicating documents related to the defense of the United States. A grand jury was convened in Virginia to consider a possible indictment against Assange, and the U.S. Congress held hearings in December 2010 to discuss the implications.
The response of media organizations and press freedom groups regarding Assange and WikiLeaks was confused and ambivalent. On August 12, 2010, RSF’s secretary general Jean-François Julliard and Washington, D.C., representative Clothilde Le Coz sent an open letter to Assange accusing him of “incredible irresponsibility” in failing to redact the names of Afghan informants included in the release of the 91,000 military documents that WikiLeaks had released a month earlier under the banner of “The Afghan War Diaries.”10
“The argument with which you defend yourself, namely that WikiLeaks is not made up of journalists, is not convincing. WikiLeaks is an information outlet and, as such, is subject to the same rules of publishing responsibility as any other media,” the letter noted. After coming under withering and sustained criticism from WikiLeaks, highly organized and motivated supporters (who accused RSF of being both smug and self-righteous and of carrying water for the U.S. government), RSF posted a clarification on August 17 noting, “We reaffirm our support for WikiLeaks, its work, and its founding principles. It is thanks in large part to WikiLeaks that the world has seen the failures of the wars waged by the United States in Iraq and Afghanistan. . . . The U.S. authorities would be very mistaken if they tried to use our criticism as support for a decision to silence WikiLeaks.” When pressure mounted on WikiLeaks in the aftermath of the “Cablegate” release, RSF offered a vigorous defense, even hosting a mirror site.
The public statements from other press freedom and media groups were even more tortured. The president of the U.S.-based Society of Professional Journalists Hagit Limor acknowledged on her blog that the organization was deeply conflicted. “If you’re looking for consensus on WikiLeaks, don’t ask a group of journalists,” she wrote. “Several of our committees have been batting around the ramifications all week, and we can’t even agree on the most basic question: Is WikiLeaks journalism?”11
The faculty of Columbia University’s School of Journalism split, with half signing a letter to President Obama in support of Assange and half abstaining. “While we hold varying opinions of WikiLeaks’ methods and decisions, we all believe that in publishing diplomatic cables WikiLeaks is engaging in journalistic activity protected by the First Amendment,” the letter noted.12
CPJ did not initially take a position on WikiLeaks as we carried out a divisive internal review. Many on the staff felt that failure to confront the United States and condemn the overheated rhetoric from members of Congress and other public figures undermined CPJ’s global credibility. In November 2010, Raushan Yesergepova, the wife of a journalist jailed in Kazakhstan for disclosing “state secrets,” confronted Hillary Clinton during an event in Astana, the capital, and asked the secretary of state to intercede. Yesergepova was reprimanded by a senior Kazakh official who pointed to the U.S. position on WikiLeaks. “Didn’t you hear what Clinton said?” he told her. “Publishing state secrets is dangerous and wrong.”13
CPJ board members, who set policy for the organization, were reluctant to speak out in response to statements by public officials calling for Assange’s head, no matter how distasteful those remarks. Partly this was because as an organization that defends free speech—including some pretty outrageous views expressed through the media—it would be hypocritical for CPJ to condemn politicians for expressing their views publicly. But there was also a wariness about—as one board member, put it—embracing Assange in a “journalistic bear hug.” While the view was not universal on the board, many members didn’t believe that WikiLeaks constituted journalism, arguing that Assange functioned more as “source” or even a “conduit.”
But after reports emerged that the grand jury was considering an indictment of Assange under the Espionage Act, we were able to forge a compromise position opposing prosecution of Assange because of the threat this posed to the media as a whole. “Our concern flows not from an embrace of Assange’s motives and objectives,” CPJ’s chairman Paul Steiger and I noted in a letter to President Obama and Attorney General Eric Holder. “But the Constitution protects the right to publish information of important interest to the public. That right has been upheld through decades of American jurisprudence and has served the people well.”14
The tepid embrace by the media community was based in large measure on the fact that most professional journalists did not identify with Assange or his methods. And Assange did not help matters at all with his dissembling and obfuscation. Assange presented himself as a journalist at times, but his justifications for WikiLeaks’ actions ranged from disrupting government communications, to ending war, to “crushing bastards.” These are not necessarily journalistic motives.15 He also violated the most basic of journalistic ethics by failing to remove the names of human rights activists and journalists who had interacted with U.S. authorities in repressive counties, putting these individuals at grave risk. After reviewing the first tranche of leaked cables in December 2010, CPJ provided to WikiLeaks the names of a number of vulnerable journalists, and their names were promptly redacted from the cables. Later, WikiLeaks released thousands of additional cables without redacting names. An Ethiopian journalist identified in one cable, Argaw Ashine, was threatened and forced to flee the country.16
Even journalists who supported the WikiLeaks project were disturbed by Assange’s personal behavior, particularly after Swedish authorities began a criminal investigation into allegations of rape.17 Without making a judgment about the veracity of the claims, it is fair to say that Assange’s response to the charges was disgraceful. In a December 2010 interview with the BBC, Assange dismissed charges brought by two women—one of whom claimed he had used force and the other of whom claimed that he had initiated unprotected sex while she was asleep. “I’ve never had a problem before with women. Women have been extremely helpful and generous,” Assange claimed. He said his accusers had been bamboozled by police and that one “of the women has written many articles on taking revenge against men for infidelity and is a notorious radical feminist.” He complained without apparent irony about the Guardian’s leaked police files about his case, calling the decision “disgusting” and describing it as part of an organized effort by Swedish prosecutors to undermine his legal defense.18
After fighting and losing a legal battle to avoid extradition from the United Kingdom to Sweden, where he would likely face formal criminal charges, Assange sought refuge in the Ecuadoran embassy in London. He was eventually granted asylum by the country’s president Rafael Correa, a man with a history of intimidating and suing critical journalists. When pressed about Ecuador’s record by the CNN anchor Erin Burnett, Assange could not bring himself to utter one word in favor of free speech in Ecuador, dismissing the issue and Ecuador itself as “not significant” in a global context.19
Should Assange be disqualified from support from journalists and press freedom organizations because of his lack of journalistic ethics and his generally loathsome behavior? I don’t think so. While I was outraged that WikiLeaks did not make a greater effort to remove the names of vulnerable individuals from the leaked cables, it is an exaggeration to suggest, as some have, that this carelessness led to journalists and human rights activists being killed or imprisoned (although several were forced into exile). Assange’s personal behavior—while deplorable—is irrelevant in terms of a determination as to whether he is a journalist.
On the other side of the equation, WikiLeaks has tried to suggest that it functions as a journalistic entity. I’m skeptical. Even though Assange has taken the title of “editor-in-chief” and describes other WikiLeaks volunteers as a “journalists,” this seems a largely opportunistic ploy to reposition the organization and claim the mantle of press freedom. WikiLeaks lacks a journalistic outlook. It provides limited context or analysis and does not generally seek to independently confirm the accuracy of the information it publishes (other than to verify the authenticity of leaked documents). WikiLeaks is best described as an anti-secrecy advocacy group that uses journalistic strategies to advance its goals.
Although the question of whether Julian Assange is a journalist is interesting, it’s not ultimately resolvable or even that relevant. The real question is whether Assange and WikiLeaks are part of the new global information ecosystem in which journalists operate. Here the answer is clearly yes. And the other important question is whether prosecuting Assange under the Espionage Act would threaten that system. Here again the answer is yes.
The 1917 Espionage Act, as noted, makes it a crime to obtain, copy, or publicize documents relating to the defense of the United States. The language is both broad and vague and could be construed to apply to the media. However, journalists have not been previously charged for a number of reasons. The first is that legislative history suggests that Congress never intended that the law be used to prosecute the press. To obtain a conviction, prosecutors must prove bad faith criminal intent—a legal concept known as scienter. This would be very difficult to do in the case of a traditional journalist. A prosecution would also almost certainly have to overcome a First Amendment challenge. Finally, the Justice Department has resisted prosecuting journalists because of the likely adverse public reaction and the damage that such a prosecution would do to the country’s international reputation.20
There are several sections of the act that could conceivably be used to bring charges against Assange. Section 793(e) criminalizes communication of national security information. To win a case against Assange under this provision, prosecutors would either have to argue that the dissemination of information to the public is covered by the act or that Assange operates so clearly outside a journalistic framework that even though the act does not apply to traditional journalists it does apply to him. Either argument—if successful—would undermine the work of the press. Prosecutors could also try to make a case under section 793(c), which makes it a crime to receive or obtain documents connected with national defense. But to prevail under this provision, prosecutors would have to demonstrate that Assange acted in bad faith. Since Assange disseminated the information to the public—which is precisely what journalists do—it would be difficult to draw a distinction between his approach and that of traditional journalists. Finally, prosecutors could argue that Assange violated section 793(g), which makes it a crime to conspire to violate the act, if it could somehow prove that Assange encouraged Manning to disclose to him the confidential documents. But if that case were successful, any journalist who persuaded a source to provide confidential or classified material could face legal jeopardy. The issue in fact emerged in an extremely troubling way after it was revealed that a Fox television reporter, James Rosen, was named in court papers as a coconspirator in a leak investigation for encouraging a source to provide him with a confidential report on North Korea.21
In other words, a successful prosecution of Assange under the Espionage Act would mean that any journalist anywhere in the world would be vulnerable to prosecution under U.S. law. If a journalist in Kenya, or Colombia, or Egypt, or Pakistan published information from classified documents in the local media they could, at least theoretically, be charged under the act and brought to trial if arrested in the United States or extradited.
Journalists may find Assange personally distasteful and generally disapprove of the reckless way in which the information was released. But WikiLeaks has in fact made an extraordinarily valuable contribution to the work of the media. The initial revelations from Cablegate were, of course, reported simultaneously in mainstream media outlets, from the Guardian to Le Monde. But the cables have also served as an invaluable resource that has enriched day-to-day coverage from Pakistan to Mali. Global citizens have benefitted tremendously as a result. Holed up in the Ecuadoran embassy in London, Assange seems a reduced figure. But if the U.S. government should ever proceed with prosecuting him under the Espionage Act, journalists around the world should rush to his defense, and the outcry should be loud and sustained. Not only would the prosecution threaten traditional journalists, but it would erode the new system of information distribution on which global citizens all depend. In other words, Julian Assange may not be a journalist, but journalists should defend him as if he were.
Journalism and Free Expression
As the Assange case illustrates, journalists can no longer protect their own interests by advocating solely for press freedom. Instead, journalists must embrace the broader struggle for freedom of expression and make it their own.
This does not mean that journalism is going to disappear or that professional journalists are indistinguishable from bloggers, social media activists, or human rights advocates. And it certainly does not mean that the quality and accuracy of the information is irrelevant. Precisely because the line is growing blurrier by the day, those who define themselves as professional journalists need more than ever to maintain standards and report with seriousness and objectivity. However, it is up to journalists themselves to make distinctions between journalism and other kinds of speech, and these distinctions will always be fluid and subject to debate. Governments should not be participants in these discussions any more than they should be expected to weigh in on the debate about what constitutes poetry. Governments must protect all speech, whether journalistic or not. Respect for freedom of expression is the enabling environment for global journalism.
Aside from the political and practical considerations, there is also a legal question. Are journalists or the press as an institution entitled to special protection under law? Article 19 of the Universal Declaration of Human Rights makes no distinction between journalistic and non-journalistic speech. It states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.” Other global and regional treaties and conventions, including the International Covenant on Civil and Political Rights, the European Convention of Human Rights, and the American Convention on Human Rights, use similar language. Journalists are not singled out for any special protections or privileges, with one notable exception, and that is the right under certain circumstances not to testify in international legal proceedings. A 2002 decision from the International Criminal Tribunal for the Former Yugoslavia determined that “war correspondents” should only be required to testify if they have evidence “of direct and important value in determining a core issue in the case” and if the information “cannot reasonably be obtained elsewhere.”22
The issue, generally, is one of definitions. If the law is to protect journalists, then they must be defined. Journalists have been reluctant to grant governments or courts the authority to make a determination about who is and who is not a member of the press. For example, when the Geneva Conventions were ratified in 1949 special protections were extended to “war correspondents” who accompany military forces with their explicit authorization. If captured, war correspondents are entitled to prisoner-of-war status, meaning, for example, that they cannot be executed as spies. This provision clearly reflected the prevailing reality during World War II, when many journalists wore military uniforms. However, during the Vietnam War, journalists operated independently throughout the conflict zone without formally attaching themselves to a military unit. In the 1970s governments began discussions about how best to extend protections under international humanitarian law to this class of independent reporters.
Negotiations eventually reached an impasse over the question of who would be entitled to claim the title “journalist” and thus the mantle of protection. Having some sort of formal accreditation for journalists would allow governments—or belligerents—to use the accreditation process to limit media access to the conflict zone. This was unacceptable to the media, and in the end Article 79 of the Additional Protocol to the Geneva Conventions ratified in June 1977 merely reaffirmed the civilian status of journalists, meaning they cannot be targeted so long as they do not participate directly in hostilities. Article 79 also provided to journalists the opportunity to obtain an identity card “issued by the government of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located” but made clear that such accreditation is not required. In other words, journalists working in conflict zones have the exact same status as bloggers, documentarians, human rights activists, truck drivers, bakers, librarians, and teachers. All are civilians. While they cannot be targeted, journalists do not have the special legal status of representatives of the Red Cross, who are given protected access to the battlefield.23
Some national constitutions do make explicit reference to press freedom, most notably the First Amendment of the U.S. Constitution, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In constitutional legal circles, there is an active debate about whether the “free press” clause confers any special rights on the institutional media, with the prevailing view being that it does not. The most active debate revolves around whether journalists can be compelled in legal proceedings to reveal their confidential sources.24 While most states have “shield laws” on the books, a journalist facing a federal subpoena enjoys no special legal protection. The public outcry that erupted in the summer of 2013 after U.S. investigators seized phone records from the Associated Press as part of a leak investigation forced the Justice Department to issue new internal guidelines limiting the circumstances in which it would seek to obtain information from the media. But a proposed federal shield that would institutionalize the new standards has languished in Congress partly as a consequence of a failure to agree on a definition of journalism.
Those who believe that the press is entitled to special protection—such as the former Supreme Court Justice Potter Stewart—argue that the press serves as an “institution outside of government,” a watchdog and a check on power, a fourth estate. The debate is important in the U.S. domestic context, but if any special legal status afforded to the press is derived from the unique role it plays in a democratic society, then what happens if the press fails to perform this role effectively? Does this mean the press would be entitled to less protection?
This framing is even more problematic from an international perspective since the “fourth estate” argument can be distorted by repressive governments to justify restrictions on the media. Take the case of Singapore, whose laws define what kind of criticism is permitted and provide a framework to ensure that the press plays its proper role as defined by the Singaporean authorities. Speaking at a conference on global press freedom at Columbia University in 2010, Singapore’s Home Affairs minister K. Shanmugam explained it this way: Press freedom exists in order to ensure free and open debate about issues of public interest. But because the media is increasingly partisan, irresponsible, and sensational, this ideal is seldom realized. Press freedom, therefore, does not serve the public interest unless the media is guided by responsible government.25
The media, Shanmugam argued, “should be a neutral medium for conveying news—with commentary clearly separate from news; it should report fully and fairly what goes on.” Singaporean authorities believe the media “can probe, ask inconvenient questions, and expose wrongdoing; it should not join the political fray and become a political actor. It should not campaign for or against a policy position.” Journalists who in the government’s view fail to meet these standards can be subject to legal action, including prosecution under Singapore’s punitive libel laws.
Journalists and press freedom organizations seeking to advance their position with individual governments can and should make all sorts of pragmatic arguments. They can argue with clear justification that a free media is necessary to limit corruption, ensure government accountability, improve the delivery of government services, ensure efficient administration of justice, increase transparency, mediate internal conflict, improve investor confidence, and enhance economic performance. All of these arguments are supported by numerous studies. But the problem with any press freedom argument based on positive outcomes is that it opens the door for governments to impose restrictions if the desired outcomes are not achieved and meanwhile blame the failure to achieve results on poor performance by the media.
To suggest that journalists are entitled to special legal protections is even more problematic in countries around the world where the media as an institution is historically compromised and the boundaries between journalism and other forms of expression are rapidly breaking down. In many countries “traditional” journalists who would be the beneficiaries of greater “press freedom” are hardly the most trustworthy or independent sources of news. Take Egypt during the Tahrir Square uprising. Most professional journalists in Egypt—coddled by decades of government largesse—continue to take their marching orders from the authorities. It was a relatively small number of independent journalists working with bloggers and activists who broke Mubarak’s information blockade.26 Throughout 2013, as street demonstrations erupted in Russia, Turkey and Brazil, the institutional media performed woefully, forcing protesters to turn to bloggers and social media activists for independent information. Independent journalists working in these sorts of environments operate in a “freedom of expression” environment that they share with other independent voices seeking to document and disseminate information.
Historically, even if journalists did not enjoy any special legal status, they have been treated with some deference by governments because of their perceived political clout. The logic is summed up by the maxim “Never pick a fight with someone who buys ink by the barrel,” a phrase that has been attributed by a top aide to President Gerald Ford but whose origin is in dispute.27 What it meant was that while governments would take on leakers and others who disclosed confidential information, they were less likely to challenge the media that published the information. This is still true, but the distinction is breaking down as the media fractures and its power diminishes. Prosecutors in the Chelsea Manning case who argued that she should have been convicted of espionage and “aiding the enemy” because she knew that the documents she leaked, once public, would be accessed by al-Qaeda acknowledged that they would have presented the same argument had the materials been published by the New York Times. Meanwhile, British investigators are considering laying terrorism charges against the Guardian editor Alan Rusbridger for publishing accounts of the documents leaked by Edward Snowden.
Journalists play a unique and pivotal role in every society and must be able to do their work without interference from the state. But as the boundaries between journalists and nonjournalists continue to erode and any meaningful definition of journalism becomes more and more elusive, journalists have to recognize that their rights are best protected not by the special realm of “press freedom” but rather by ensuring that guarantees of free expression are extended to all. While it is natural and normal for journalists and press freedom organizations to give special emphasis to their journalistic colleagues, they can’t stand on the sidelines of the broader struggle for freedom of expression, both online and off, and must actively defend the rights of all people everywhere to gather news, express their opinions, and disseminate information to the public. This is a difficult adjustment for journalists, but no more difficult than the one professional journalists made thirty years ago when they decided they could defend their media colleagues without compromising their professional standing. For journalists around the world, standing up for freedom of expression is a matter both of principle and of self-interest. While journalists can be objective when it comes to covering the news, they cannot be objective when the legal and physical barriers to their work continue to mount. In the final analysis, they have to roll up their sleeves and fight alongside the various and diverse constituencies that share their common interests.