Note: This is the second part of a multiple part series about the ability of the government to prosecute journalists for receiving and disseminating national security information. It comes in response to increasing public musings about the prosecution of journalists related to the Edward Snowden leaks.
Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.
by Matthew L. Schafer
In his June 30 article, Journalism, Even When It’s Tilted, the New York Times’ David Carr joined many others in exploring whether a journalist activist is, in fact, still a journalist. Or, whether the activism running through him somehow preempts the journalist aspect of his occupation. Unfortunately, he begins his discussion from a faulty premise – that journalists at the federal level are entitled to more First Amendment protection than any other citizen.
Speaking about the NSA Leaks reporter Glenn Greenwald, who has been called an activist by many opponents of his cause, Carr explained, “Sometimes, a writer’s motives or leanings emerge between the lines over time, but you need only to read a few sentences of Mr. Greenwald’s blog to know exactly where he stands. Mr. Greenwald is an activist who is deeply suspicious of government and the national security apparatus, and he is a zealous defender of privacy and civil rights.”
Carr then quickly (rightly) concludes that Greenwald is a journalist, but then trips up in the very next paragraph.
“Taxonomy is important, partly because when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else. To exclude some writers from the profession is to leave them naked before a government that is deeply unhappy that its secret business is on wide display.”
In the case of national secrets, leakers would be tried in federal courts. There are a few federal statutes that are aimed at protecting journalists in that context. For example, there is a Privacy Protection Act that is supposed protect journalists’ work product from searches and seizures. There is also, of course, the federal Constitution and the First Amendment. Finally, there is the Department of Justice regulation that governs when the government can subpoena or question journalists, but that does not actually provide any enforceable protections – its advisory.
First, the Privacy Protection Act is not limited to “traditional journalists.” Simply, it applies to “any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”
Thus, whether Greenwald, for example, is a journalist or activist is less important under the Act than whether he is intending to disseminate information to the public. Because he is intending to do so, he would get its protections (unless the government decided to allege that yet another journalist is a co-conspirator).
Second, the First Amendment provides citizens with the right to freedom of speech and the press. In this context, the Court has held that where someone publishes information that is both truthful and a matter of public concern (like Greenwald’s publication of the NSA leaks), the government’s attempt to “punish the publication of [such] truthful information seldom can satisfy constitutional standards.” Bartnicki v. Vopper, 532 US 514, 527 (2001). In such a case, the government must show a “need of the highest order.”
There is no reason to suppose that this constitutional rule only applies to “traditional journalists” and not to “activists.” Indeed, in the most recent case, the Supreme Court extended the privilege to a “radio commentator,” who was not a traditional journalist in the sense that term is normally used. He was more of an activist actually.
Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen.
Third and more broadly, the Supreme Court has always shunned creating a constitutional distinction between the press and the public, where the press as an institution gets a bigger slice of the First Amendment pie than any other citizen. As the Court has said in many cases in varying language, “[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods . . . .” Branzburg v. Hayes, 408 U.S. 665, 703 (1972).
Finally, under the First Amendment there is a so-called reporter’s privilege that is recognized in several United States Courts of Appeals even though the Supreme Court has never adopted it. This privilege allows reporters to refuse to testify in some cases as to the name of their constitutional sources.
It is also somewhat of a misnomer, as it is named the “reporter’s” privilege. It is a misnomer, because traditional reporters or journalists have no special claim to its protections. Instead, it generally protects anyone who can show that he or she is engaged in gathering and disseminating news.
The Ninth Circuit explained best why the taxonomy of journalist versus activist does not matter in the context of a “reporter’s privilege.”
The purpose of the journalist’s privilege . . . was not solely to protect newspaper or television reporters, but to protect the activity of ‘investigative reporting’ more generally. Thus, . . . it makes no difference whether “[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill” because “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993).
Overall then, whether it be federal statutes or federal constitutional law, the debate over who qualifies as a “traditional journalist” does not matter as much as one might think, as many of the protections that reporters rely on could also be relied on by “activist” journalists.
By failing to recognize this, Carr missed the mark with, at least, part of the very premise of his article. This isn’t to say that it is not important to discuss whether an activist should be less credible than a traditional journalist and ask why that should or should not the case – it is. But, before that question is even entertained, it is important to be clear just exactly what we are talking about when it comes to the definitional quandary spurred on by new forms of journalism.
Update 6:34 EST: Added hyperlinks in first and second paragraph and fixed date in first paragraph that incorrectly said Carr’s article was published on January 30 as opposed to June 30. The author regrets this error and is well aware of the irony of an error in a media criticism article.
