Double Standards Endanger Press Freedom

The treatment of Bryan Carmody and Julian Assange reveals widespread confusion about who counts as a journalist and whether it matters.

The day after the federal government indicted WikiLeaks founder Julian Assange on 18 charges related to his publication of secret Pentagon and State Department documents, San Francisco's police chief apologized for raiding the home of freelance videographer Bryan Carmody because he had obtained a report he was not supposed to have. The two cases reveal widespread confusion about who counts as a journalist and whether it matters.

Declaring that Assange is "no journalist," a Justice Department official assured reporters that the DOJ appreciates "the role of journalists in our democracy," saying "it is not and has never been the department's policy to target them for reporting." Yet almost all of the federal felonies described in the Assange indictment involve obtaining and disclosing "national defense information"—crimes that reporters who cover national security routinely commit.

San Francisco police likewise questioned Carmody's professional status in defending their May 10 search of his house, during which officers attacked his security gate with a sledgehammer and kept him handcuffed for six hours while they seized his equipment and records. Last week Chief William Scott described Carmody as a "co-conspirator" in the "theft" of a leaked police report on the death of San Francisco Public Defender Jeff Adachi.

Three days later, responding to widespread criticism, Scott was singing a different tune. "I'm sorry that this happened," he told the San Francisco Chronicle.

According to Scott, it was all a misunderstanding. "I am specifically concerned by a lack of due diligence by department investigators in seeking search warrants and appropriately addressing Mr. Carmody's status as a member of the news media," he said in a press release.

Scott mentioned California's shield law, which applies to anyone "connected with or employed upon" a news organization and protects the confidentiality of journalists' sources and unpublished information. "Department investigators" apparently understood that the shield law protected Chronicle crime reporter Evan Sernoffsky, whom they left unmolested even though he wrote articles based on information from the same leaked police report.

There is no federal shield law. But there is the First Amendment, which guarantees freedom of the press. Contrary to what the Justice Department wants us to believe, that freedom is not a special privilege that belongs only to officially recognized journalists. It applies to all of us when we use technologies of mass communication.

Assange views himself as a journalist and describes WikiLeaks as a "multi-national media organization." Even if federal prosecutors disagree with that characterization, it does not matter: WikiLeaks has the same rights under the First Amendment as Fox News or The New York Times.

Yet in Assange's case, we see the same double standard that was apparent in San Francisco. Although news organizations across the country and around the world published essentially the same information as WikiLeaks did, based on documents leaked by former Army intelligence analyst Chelsea Manning, they are not in the dock. For now.

The Assange indictment emphasizes things he did that most investigative journalists do not do, such as publicly soliciting classified information, publishing unexpurgated documents that put informants at risk, and (allegedly) offering to help a source break a government password. But except for one count, those details are not necessary elements of the charges against Assange, which is why journalists who make a living by reporting facts the government prefers to conceal are right to be worried about the precedent this case sets.

In its landmark 1971 Pentagon Papers decision, the Supreme Court ruled that the government could not constitutionally stop newspapers from publishing stories based on a secret history of the Vietnam War. But it did not resolve the question of whether they could be prosecuted after the fact.

That is the question posed by the Assange indictment, no matter how much the Justice Department wants to pretend otherwise. The answer will determine whether the government is the final arbiter of what we are allowed to know about what it does in our name.

© Copyright 2019 by Creators Syndicate Inc.

Comments

[Longtobefree]

We are supposed to be a Nation of Laws, treating everyone equally.
But I guess some are more equal than others.
How can knighting some individuals as "journalist", and deplatforming and banishing others be equal?

[loveconstitution1789]

The "journalists" have been propagandists for many decades. Now that average people can expose government misdeeds and publish to the World over the internet, it will take a concerted effort by the Nanny and Police Staters to silence dissent and publishing of government corruption.

[Quixote]

Indeed, the so-called "first amendment" was written in very different social circumstances than we confront today. The idea that everyone is entitled to "equal" treatment in this regard would lead to absurd consequences that would certainly be rejected here at NYU. For example, it is now well known that email "parodies" that damage the reputation of a distinguished academic department chairman in our university are not entitled to the same sort of protections as ones that offend politicians, or university presidents (at least elsewhere in the country). Everyone who doesn't understand how this works can simply consult the documentation of our nation's leading criminal "satire" case at:

https://raphaelgolbtrial.wordpress.com/

[CGN]

Cops are he most fascist government employees in the U.S. They do as they please, and GOD DAMN the laws, and since no prosecutor will even think of prosecuting these fiends, they are free to continue their lawless ways. Cops DO NOT prevent crime, they DO NOT solve crimes, they simply ride around in their cars pulling poor souls over for whatever lie they want to tell that day. FUCK ALL COPS!

[RussianPrimeMinister]

While I agree, these kinds of posts really leave me wondering. . .

We've learned that the FBI has a penchant not just for infiltrating political organizations for the purpose of spying on them and discrediting them, but also for setting up those they see as "too radical" for some kind of domestic terrorism charge. I know who I am and why I hate the police, but these kinds of out-of-nowhere hate screeds always make me narrow my gaze and think "is this guy a plant?"

Maybe I'm paranoid, but I feel like paranoia is a thing of the past when the government literally has the ability and desire to do almost every single thing we've been paranoid about since the '70s. That included planting agents into forums to discredit reasonable and intelligent people by trying to associate them with people who scream "KILL ALL COPS" or "BLOW IT UP".

When the loudest member of your group is a psychopath, it makes the rest of you look bad, right? Why do you think "Alt-Right" has become a thing? They include Libertarians in that group because the majority of the people they classify as "Alt-Right" are Nazis and other deplorables.

So, tell me, are you real?

[loveconstitution1789]

The courts should nip these attacks on the Freedom of Expression right in the bud.

Freedom of the press does not necessarily limit protection of publishing and printing information and commentary about the government to "journalists" only.

Especially in the Internet Age where anyone can be at the right place at the right time to video or other capture government wrongdoing and publish that to the World in a matter of minutes.

[Earth Skeptic]

Might be hopeless to expect government to defend, or at least not attack, rights that enable people to reveal what government wants to remain hidden, including other violations of rights.

[ThomasD]

Who gives a fuck who 'counts' as a journalist.

Oh yeah, Sullum.

What, you want a license????

[ThomasD]

To be clear: The problem is not a 'double' standard. The problem is a single incorrect one.

[Metazoan]

From the article:

Contrary to what the Justice Department wants us to believe, that freedom is not a special privilege that belongs only to officially recognized journalists. It applies to all of us when we use technologies of mass communication.

Pretty sure Sullum is saying that it is a meaningless question, and that anyone can be a journalist.

[ThomasD]

Pretty sure he keeps referring to a double standard. No matter what window dressing he applies.

[ThomasD]

Whether someone is or isn't a journalist is not merely moot, it is meaningless.

[HenryC]

Actually, the 1st amendment rights that apply to the press apply to all citizens. The Constitution makes no distinction. Assange being a journalist has no bearing at all on the charges. That does not make the charges right, but journalist need to get a clue. They are not a special class of citizen.

[HenryC]

the journalist needs or journalists need, sorry.

[Dillinger]

>>>But there is the First Amendment, which guarantees freedom of the press.

freedom *TO* press. "the press" and "journalists" are myths.

[Diane Reynolds (Paul.)]

Your journalism bona fides are directly related to the size of the legal team backing up your organization.

[MatthewSlyfield]

Have you looked at Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters by Eugene Volokh?

His conclusion seems to be that out of an 18 count revised indictment, only counts 15-17 are actually 1A free press/free speech issues.

[RoyMo]

But it also points out that counts 1-14 implicate regular journalistic practice. Read more closely.

[MatthewSlyfield]

Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn't itself criminal but just civilly actionable). Perhaps reporters shouldn't be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

Perhaps you should take your own advice to heart. Whether they affect regular journalistic practice or not, he positions them as constitutionally sound.

[damikesc]

I would question where any level of government has any actual power to determine who is and who is not a journalist.

Unless one wishes to argue that physical possession of an actual printing press is required to have rights, it seems dubious.

I mean, how many printing presses does CNN own?

[HenryC]

The first amendment applies to everyone, not just journalists. Journalists do not have special status. The mention made is an example, not a specific.

[Acoscirq]

Journalists have been playing the first amendment double standard game for years now, so they're not too troubled by the DOJ's most recent attacks on the first amendment. Their understanding of the 1st Amendment reads:

"Congress shall make no law abridging the freedom of the press."

Full stop.

The rest of us are nothing but a bunch of criminals trying to hide behind the 1st amendment, which cannot be allowed.

The same dynamic that underlies the 1st amendment underlies all laws, which is skin in the game. The Press have not been convinced they have any here and as long as their right to free speech is not threatened they couldn't give two shits about anyone else.
They'll only react only if and when their rights are threatened and by then they will be so despised by the public they failed that one will care what becomes of them.