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.