As you may have heard, former state Probation Department commissioner John O’Brien and two underlings have been convicted in federal court of charges related to patronage.
In Massachusetts Lawyers Weekly, Harvey Silverglate and his legal assistant Daniel Schneider criticize U.S. Attorney Carmen Ortiz and other officials for transforming behavior they don’t like — behavior that, to be sure, was grotesquely corrupt — into a federal crime, even though patronage is perfectly legal under state law. (No, neither Silverglate, Schneider nor I am impressed that this was done via a legal theory criminalizing the system O’Brien used to facilitate the patronage rather than the patronage itself.)
More broadly, Silverglate explained how it’s done in his 2009 book “Three Felonies a Day: How the Feds Target the Innocent,” which I wrote about for The Guardian. As for Ortiz, she recently won her third consecutive New England Muzzle Award, now hosted by WGBHNews.org.
More: Even though I join Silverglate and Schneider in believing the legal case was dubious, the facts that were unearthed would make a jackal puke. Kudos to The Boston Globe for exposing this violation of the public trust.
When Amazon.com founder Jeff Bezos bought The Washington Post last year for the paltry sum (especially for him) of $250 million, newspaper observers hoped that it presaged a new era for the struggling daily. For now, at least, it looks like those hopes are becoming a reality.
The Post is ramping up. Michael Calderone of The Huffington Post reported recently that the paper has hired 50 full-time staff journalists so far in 2014, and that it is making at least a partial return to its status as a national newspaper — a status it had retreated from during the final years of Graham family ownership. Executive editor Marty Baron told Calderone:
We’ve talked a lot about the need to grow. We’ve said that in order to grow, we have to look outside our own immediate region and the only opportunity for growth is digital. We are looking at growth opportunities around the country.
Richard Byrne Reilly recently wrote in VentureBeat that Bezos isn’t quite the hands-off owner that he appears to be, taking a deep interest in the paper’s digital initiatives. According to Reilly:
With chief information officer and technology vice president Shailesh Prakash at the helm, Bezos is pumping cash into the once staid company’s IT infrastructure. Lots of it. The new leadership has put 25 computer engineers into the newsroom, helping reporters craft multifaceted digital stories for mobile devices.
The Post’s expansion is a heartening development, and it’s one we’re seeing unfold in Boston as well. Red Sox principal owner John Henry, whose $75 million purchase of The Boston Globe was announced just days before Bezos said he was buying the Post, has, like Bezos, shown a willingness to try to grow his news organization out of the doldrums into which it had fallen.
The Globe is making some interesting moves into video; has redesigned its nearly two-decade-old free Boston.com site while moving all Globe content behind a flexible paywall at BostonGlobe.com; has developed new verticals for innovation and technology (BetaBoston) and arts and entertainment (RadioBDC and BDCWire); and will soon unveil a standalone site covering the Catholic Church.
As for the Post, it’s notable that its comeback coincides with a serious misstep at The New York Times — the botched firing of executive editor Jill Abramson. Combined with the loss this week of the Times’ chief digital strategist, Aron Pilhofer, to The Guardian, and the release of an internal report criticizing the Times’ own digital strategy, it may not be an exaggeration to suggest that energy and momentum have swung from the Times to the Post. (To be sure, the Times’ new executive editor, Dean Baquet, enjoys an excellent reputation.)
From the Pentagon Papers and Watergate in the early 1970s until about a decade ago, the Times and the Post were often mentioned in the same breath as our two leading newspapers. Good as the Post was during the final years of the Graham era, budget-cutting allowed the Times to open up a lead and remain in a category of its own.
It would be great for journalism and for all of us if Bezos, Baron and company are able to level the playing field once again.
Photo (cc) by Steve Jurvetson and used under a Creative Commons license. Some rights reserved.
My two favorite stories about Jill Abramson both speak to her insistence on holding The New York Times to account. Those stories may help explain why she was removed as executive editor on Wednesday.
The first pertains to investor Steven Rattner, a friend of publisher Arthur Sulzberger Jr. who was being investigated by the Securities and Exchange Commission over a kickback scheme involving the New York State pension fund. (In November 2010 Rattner paid a $6.2 million settlement and accepted a two-year ban on some of his trading activities.)
According to The New Yorker’s Ken Auletta, Abramson — then the managing editor, serving as Bill Keller’s number two — didn’t hesitate to green-light a front-page investigative report on Rattner, the Sulzberger connection be damned. “What better test is there for an editor than how they handle the publisher’s best friend?” Auletta quoted an unnamed Times source as saying.
To Sulzberger’s credit, the incident didn’t prevent him from naming Abramson to succeed Keller in 2011. But what may have created an irreparable breech was a second, similar story. In 2012, Sulzberger chose Mark Thompson, the former director general of the BBC, to become chief executive officer of the New York Times Co. Before Thompson could begin, Abramson dispatched one of the Times’ top investigative reporters to look into whether Thompson had any role in the child-sex-abuse scandal whirling around Jimmy Savile, a once-popular TV host.
Both Thompson and Sulzberger were angry, reports Gabriel Sherman in New York magazine. A source was quoted as saying of Sulzberger: “He was livid, in a very passive aggressive way. These were a set of headaches Jill had created for Arthur.”
Now the Times’ internal top cop is off the beat. And Thompson, presumably, has a freer hand to enact his agenda — an agenda that is said to include, among other things, more online video and more native advertising, the term of art used to describe what used to be disparagingly referred to as “advertorials.”
Abramson’s successor and former number two, Dean Baquet, is now the paper’s first African-American executive editor, a not-insignificant milestone on a par with Abramson’s being the first woman. He is said to be a fine editor and a popular choice with the newsroom.
But given that Sulzberger’s own son recently wrote a report arguing that the Times isn’t moving quickly enough on the digital front, it might seem strange that Abramson’s successor would be someone regarded as even less digitally savvy than she. The likely explanation is that Thompson sees himself as the paper’s chief digital officer. Certainly Thompson does not lack for confidence. Less than a year ago he supposedly told a Times executive, “I could be the editor of the New York Times,” according to an article by Joe Hagan in New York magazine.
I don’t mean to play down any of the other reasons that have been given for Abramson’s abrupt and brutal dismissal. There is the matter of her brusque demeanor, described in detail last year by Dylan Byers of Politico. At the time I dismissed it as anonymously sourced sexism, but Byers is deservedly taking a victory lap this week.
Another factor was her complaints about making less money than Bill Keller did when he was editor, a story Ken Auletta broke within hours of Abramson’s dismissal. Auletta reported that Abramson even learned she made less than a male deputy managing editor when she was managing editor. The Times has denied all, although in language that makes it hard to figure out what, precisely, it is denying.
And then there is the incident that may have precipitated the final crisis — her reported attempts to hire Janine Gibson away from The Guardian to serve as a co-managing editor for digital without bothering to inform Baquet. Certainly that’s the angle that the Times’ David Carr and Ravi Somaiya play up in their own coverage of Abramson’s dismissal. (Other accounts say Gibson would have been a deputy managing editor, and thus presumably less of a threat to Baquet’s authority.)
Still, none of these reasons sufficiently explains why Sulzberger believed Abramson needed to be dealt with so harshly. She was all but hustled out of the building, treated like Howell Raines after he was dismissed for enabling a plagiarizing, fabricating young journalist named Jayson Blair. By contrast, the Times under Abramson’s editorship has been a journalistic success and has done reasonably well financially at a time when the news business has been imploding, as Matthew Yglesias explains at Vox. (Vox also takes the prize for the best Abramson headline: “Tattooed, puppy-stealing badass editor Jill Abramson out at the New York Times.”)
“I think what it says to us is there is still enormous challenges for women out there, for women who assume those key and influential roles in journalism,” Melissa Ludtke, a pioneering sports journalist and former editor of Nieman Reports, told Politico’s Anna Palmer.
I think it’s more complicated than that. It is nevertheless a fact that in the past few years Sulzberger has fired two of the highest-ranking women in the newspaper business — first Janet Robinson, creating the vacancy that Mark Thompson later filled, and now Abramson.
In addressing the staff Wednesday, Sulzberger referred to “an issue with management in the newsroom.” That’s not good enough. And it’s not the kind of accountability Abramson pushed for in covering the powerful institution that she worked for. I hope we’ll learn more in the days ahead.
In a well-appointed banquet hall at the Westin Boston Waterfront, a balding, disturbingly energetic man in a red bow tie is holding forth on baby boomers, technology and aging.
“We are not young, but we are youthful,” enthuses Joseph Coughlin, director of the MIT AgeLab. A bit later: “And by the way, we never talk about the F-word when it comes to aging: fun!” Well, I suppose.
I had come to the Westin last Thursday for a program called “Booming Tech,” presented by The Washington Post as part of its Washington Post Live video series. I was less interested in the subject matter — how boomers getting along in years are enhancing their lives with digital technology — than I was in finding out what the Post was up to.
At a time when newspapers are scrambling to make money any way they can, Washington Post Live struck me as unusual and innovative. The two-hour-plus event, moderated by Washington Post Live editor Mary Jordan (with an assist from Sacha Pfeiffer of Boston public radio station WBUR), featured panels on tech and entrepreneurship, a conversation with health-care expert (and Massachusetts gubernatorial candidate) Don Berwick and a closing one-on-one between Jordan and humorist/curmudgeon P.J. O’Rourke, who was on hand to flog a new book. (Jordan: “Do you like your cell phone at least?” O’Rourke: “No.”)
So how does all this fit with the Post’s business strategy? I snagged Tim Condon, the Post’s director of new ventures and interim general manager of Washington Post Live, for some insight. (Earlier in the week, the Post had announced that former Bloomberg executive Robert Bierman would be taking over as the permanent general manager.)
Washington Post Live launched in 2011, well before Amazon.com founder Jeff Bezos acquired the Post. The idea, Condon said, is to reach an “influential audience,” usually in Washington but occasionally outside the Beltway. He described the venture as both journalism and business, and said the Post hosts between 20 and 30 such events each year.
“The content that comes from these discussions are our journalism,” Condon said. And though the events are free, they are paid for by underwriters — in this case, the AARP, which was holding a national conference called Life@50+ next door at the Boston Convention and Exhibition Center.
Washington Post Live events are free and open to the public, and other news organizations are invited to cover them as well. The compare-and-contrast that comes to mind is the Post’s ill-conceived plan in 2009 to host $25,000 off-the-record salons with the paper’s journalists in publisher Katharine Weymouth’s home (a fiasco I wrote about at the time for The Guardian).
The Booming Tech event at the Westin featured, inevitably, its own hashtag (#techboomers). About 100 people were on hand, but many of them seemed younger than I — and I’ve been fending off AARP mailers for the better part of the past decade.
The proceedings were webcast live, and video highlights have been posted. A publication of some sort will follow, Jordan told the audience, after a second Booming Tech is held in San Diego on Sept. 4. The idea of the Post holding events far outside its circulation area would seem to line up well with its recent move to give subscribers of some other newspapers digital access to the Post; both aim to extend the power of Post content outside its traditional boundaries.
In his conversation with Jordan, P.J. O’Rourke insisted that he is “not a Luddite,” explaining: “A Luddite wants to destroy tech … I just want to point out that there will be tears before bedtime for a long time.”
As with so many news organizations, technology has led to a lot of tears at The Washington Post, transforming the paper from a highly profitable enterprise into a money-loser hoping that some of Bezos’ Amazon fairy dust will somehow rub off.
Washington Post Live is certainly not the answer to the Post’s woes, or to those of the news business in general. But it’s nevertheless an interesting idea that at least partly answers the question: “Where do we go from here?”
Within moments of the announcement that The Boston Globe had won the Pulitzer Prize for Breaking News Reporting, Martine Powers tweeted from the newsroom. “This was a story none of us wanted to cover,” she quoted editor Brian McGrory as saying. The staff, she said, then observed a moment of silence at McGrory’s request for the victims of the Boston Marathon bombings.
The Globe easily could have won two or three Pulitzers for its coverage of the bombings and their aftermath. The breaking-news award, of course, was well-deserved, and frankly it was unimaginable that it would go to anyone else. But the paper also had worthy marathon-related finalists in Breaking News Photography (John Tlumacki and David L. Ryan) as well as Commentary (Kevin Cullen, who emerged as the voice and conscience of the city after the attack).
McGrory’s classy response to winning underscores the sad reality that the Globe’s excellent coverage was driven by a terrible tragedy — the worst terrorist attack on U.S. soil since Sept. 11, 2001. (The Globe was also a finalist in Editorial Writing, as Dante Ramos was honored for a non-marathon-related topic: improving the city’s night life.)
The Pulitzer also caps what has been a remarkable year for the Globe. On Marathon Monday 2013, McGrory was relatively untested as editor and the paper’s prospects were uncertain, as the New York Times Co. was trying to unload it for the second time in four years.
The Globe’s marathon coverage — widely praised long before today’s Pulitzers were announced — have defined McGrory’s brief term as editor as surely as the paper’s pedophile-priest coverage (which earned a Pulitzer for Public Service) defined Marty Baron’s. Moreover, the Globe now has a local, deep-pockets owner in John Henry who’s willing to invest in journalism.
But the focus should be on Martin Richard, Krystle Campbell, Lingzi Lu and Sean Collier, as well as their families and all the other survivors. Good for McGrory for reminding everyone of that.
A couple of other Pulitzer notes:
• A lot of observers were waiting to see whether the judges would honor the stories based on the Edward Snowden leaks. They did, as the Pulitzer for Public Service went to The Guardian and The Washington Post.
Glenn Greenwald and Laura Poitras, then affiliated with The Guardian and now with the start-up First Look Media, as well as Barton Gellman of the Post, were the recipients of the Snowden leaks, which revealed a vast U.S. spying apparatus keeping track of ordinary citizens and world leaders both in the United States and abroad.
The choice is bound to be controversial in some circles. U.S. Rep. Peter King, R-N.Y., has already called the award “a disgrace.” But it was the ultimate example of journalism speaking truth to power, and thus was a worthy choice.
The Pulitzer process can be mysterious. But it would be interesting to see if someone can pry some information out of the judges to find out why they believed there wasn’t a single feature story in 2013 worthy of journalism’s highest honor.
Last January, not long after the young Internet genius Aaron Swartz committed suicide, civil-liberties lawyer Harvey Silverglate wrote powerfully about the abusive prosecutorial tactics that may have led to his death.
Swartz faced a lengthy federal prison sentence for downloading academic articles at MIT without authorization. Even though the publisher, JSTOR, declined to press charges, U.S. Attorney Carmen Ortiz brought a case agains Swartz under the Computer Fraud and Abuse Act. As Silverglate put it, the law is “a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.”
Silverglate’s article was republished in Media Nation with the permission of Massachusetts Lawyers Weekly, where it originally appeared. And it was far and away the most viewed article in Media Nation in 2013.
Today we present Media Nation’s top 10 posts for 2013, based on statistics compiled by WordPress.com. They represent a range of topics — from the vicissitudes of talk radio to a media conflict of interest, from Rolling Stone’s controversial cover image of accused Boston Marathon bomber Dzhokhar Tsarnaev to the sad, sudden death of The Boston Phoenix.
The top 10 is by no means representative of the year in media. Certainly the biggest story about journalism in 2013 involved the National Security Agency secrets revealed by Edward Snowden to The Guardian and The Washington Post — a story that did not make the cut at Media Nation.
Here, then, is our unrepresentative sample for the past 12 months.
1. Harvey Silverglate on the Aaron Swartz case(Jan. 24).Few people were more qualified to weigh in on U.S. Attorney Ortiz’s abusive tactics than Silverglate, my friend and occasional collaborator, who several years ago wrote “Three Felonies a Day,” a book on how the federal justice system has spun out of control. But Silverglate’s take wasn’t the only article about Swartz to generate interest in Media Nation. The aftermath of Swartz’s suicide also came in at No. 11 (“The Globe turns up the heat on Carmen Ortiz,” Jan. 11) and No. 13 (“Aaron Swartz, Carmen Ortiz and the meaning of justice,” Jan. 14). In a bit of poetic justice, a project Swartz was working on at the time of his death — software that allows whistleblowers to submit documents without being identified — was unveiled by The New Yorker just several months after his suicide.
2. The New Republic’s new owner crosses a line (Jan. 28). A little more than a year ago, the venerable New Republic was saved by Chris Hughes, a co-founder of Facebook who is using some of his fortune to restore the magazine to relevance and fiscal health. But he crossed an ethical line last January when he took part in an interview with President Obama, whose campaign he had worked on, and tossed a series of softball questions his way. At the time I wrote that Hughes was guilty of “no more than a minor misstep.” So how did it rise to No. 2? It turns out that a number of right-leaning websites picked up on it, bringing a considerable amount of traffic to Media Nation that I normally don’t receive.
3. Dailies go wild over sports controversies (Aug. 30). Four months after publishing this item, I find it hard to make heads or tails of what was going on. But essentially Globe-turned-Herald sportswriter Ron Borges contributed to a Rolling Stone article on the Aaron Hernandez murder case, which generated some tough criticism from both the Globe and the well-known blog Boston Sports Media Watch. That was followed almost immediately by a Globe article on the ratings collapse of sports radio station WEEI (AM 850), which brought yet more tough talk from, among others, ’EEI morning co-host Gerry Callahan, who also happens to write a column for the Herald. Yes, Boston is a small town.
4. Rolling Stone’s controversial cover (July 17). I thought it was brilliant. I still do. The accusion that Rolling Stone was trying to turn Dzhokhar Tsarnaev into some sort of pop-culture hero is absurd and offensive — and not borne out by the well-reported article that the cover was designed to illustrate.
5. Glenn Ordway walks the ratings plank(Feb. 14). Ordway built sports talker WEEI into a ratings monster only to see its numbers crater in the face of competition from the Sports Hub (WBZ-FM, 98.5). Ordway was by no means the problem with WEEI. But station management decided it could no longer afford his $500,000 contract, and so that was it for the Big O.
6. A big moment for The Boston Globe(Dec. 17). It was actually a big year for the Globe, from its riveting coverage of the marathon bombing and the standoff that led to the arrest of Dzhokhar Tsarnaev to the paper’s acquisition by Red Sox principal owner John Henry. But two days in mid-December were emblematic of the paper’s continuing excellence and relevance — a long, detailed exposé of the Tsarnaev family that revealed Dzhokhar, rather than his older brother, Tamerlan, may have been the driving force behind the bombing; an investigation into a case of alleged “medical child abuse” that pitted a Connecticut family against Children’s Hospital; and a nationally celebrated series of tweets by staff reporter Billy Baker about a Boston teenager from a poor family who had been admitted to Yale.
7. The Boston Phoenix reaches the end of the road (March 14). A stalwart of the alternative-weekly scene and my professional home from 1991 to 2005, the Phoenix was a voice of incalculable importance. But with even the legendary Village Voice struggling to survive, the alt-weekly moment may have passed. At the time of its death, the Phoenix had more than 100,000 readers — but little revenue, as advertising had dried up and both the print edition and the website were free. I scribbled a few preliminary thoughts in this post, and later wrote something more coherent for PBS MediaShift.
8. The return of Jim Braude and Margery Eagan (Feb. 6). Eagan and Braude’s morning show was the one bright spot on WTKK Radio, an otherwise run-of-the-mill right-wing talk station that had been taken off the air a month earlier. So it was good news indeed when the pair was hired to host “Boston Public Radio” from noon to 2 p.m. on public station WGBH (89.7 FM). (Note: (I am a paid contributor to WGBH-TV’s “Beat the Press,” where Eagan is a frequent panelist.)
9. Joe Scarborough grapples with history — and loses(Feb. 17). Asking cable blowhard Scarborough to write a review for The New York Times Book Review about the relationship between Dwight Eisenhower and Richard Nixon could have been a smart, counterintuitive move. But it only works if the writer in question is, you know, smart.
10. The bell tolls for WTKK Radio (Jan. 3). As I already mentioned, Jim Braude and Margery Eagan were able to walk away from the rubble of WTKK, which was shut down by corporate owner Greater Media and turned into an urban music station. Just a few years earlier the station had been a ratings success with trash-talking hosts like Jay Severin and Michael Graham. But tastes change — sometimes for the better.
Photo (cc) by Maria Jesus V and published under a Creative Commons license. Some rights reserved.
Just catching up with this. Jon Chesto of the Boston Business Journal reports that The Boston Globe’s Your Town sites are being trimmed by six correspondents — approximately half the staff. Your Town, part of the Globe’s free Boston.com website, provides hyperlocal coverage of the suburbs as well as of several Boston neighborhoods.
Globe regional editor David Dahl tells Chesto that there will be no site closures. But it seems inevitable that there will be cuts in coverage, even though Globe staff reporters and freelancers will continue to contribute. There are more than 100 Your Town sites and about 15 related Your Campus websites covering colleges and universities in Greater Boston.
Your Town got off to a shaky start in 2008, as GateHouse Media — which operates Wicked Local sites in virtually all of the same communities targeted by Your Town — sued the New York Times Co. (the Globe’s owner, at least for a few more weeks) for copyright infringement, arguing that the Your Town sites in some cases aggregated virtually all of GateHouse’s content for a given community without offering much else.
The two sides reached an out-of-court settlement in early 2009, as I reported for The Guardian. Your Town eventually grew into a valuable resource in many communities. But it looks like the sites, which carry little advertising, got to be too expensive to operate.
Chesto writes that the cuts call hyperlocal coverage into question as a business strategy, noting that AOL’s Patch sites are in the midst of deep cuts as well. But though hyperlocal may well be a loser at the corporate chain level, there are a number of successful independent sites operating across the country. You could read a book about such sites, hint, hint. The real issue is that hyperlocal is best understood as a grassroots phenomenon.
Did Globe executives reach this decision on their own? Or was incoming owner John Henry involved? And if he was, what does that say about his priorities for the Globe?
(Disclosure: Journalism students at Northeastern as well as several other Boston colleges and universities contribute to the Your Town and Your Campus sites.)
As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.
Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.
We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”
But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.
The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).
What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.
The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.
The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.
But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?
Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.
The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.
Edward Jay Epstein has written an innuendo-laden column for The Wall Street Journal in which he strongly insinuates that filmmaker Laura Poitras and/or journalist/blogger/lawyer Glenn Greenwald of The Guardian criminally assisted Edward Snowden in leaking National Security Agency documents.
Epstein’s toxic brew of archly worded questions leads to the inescapable conclusion that he believes the two journalists ought to be investigated and possibly charged under the World War I-era Espionage Act.
The First Amendment and press freedom questions that haunt the Espionage Act are particularly important right now. Changes in media and technology have put the tools of journalism and media making in the hands of more and more people, challenging old assumptions about who is a journalist and how journalism is done. Increasingly, independent journalists, nonprofit news outlets and citizens are playing critical roles in newsgathering and reporting on the most important issues of our time.
I don’t think Stearns gives sufficient weight to the idea that merely publishing leaked documents is, in fact, a violation of the law, and that investigative journalism depends on the hopeful notion that the government won’t use its authority. Otherwise, though, it’s a useful guide to the issues at stake.
More: Greenwald responds to the Epstein column in this Storify involving (mainly) Jeff Jarvis and Michael Wolff.
The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.
The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.
Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”
In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.
American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.
The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.
But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.
Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.
More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:
So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.
More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.
This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.
Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.
