Tag: Julian Assange

Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

Become a member of Media Nation for just $5 a month! Members receive a weekly newsletter with exclusive early content. Just click here.

As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

Danny Schechter’s legacy and the passion of Julian Assange

Danny Schechter in Almaty, Kazakhstan. Photo (cc) 2009 by Dan Kennedy.

Previously published at WGBHNews.org.

The news was disorienting: WikiLeaks founder Julian Assange, whose alleged misdeeds range from sexual assault to acting as a Russian intelligence asset, would be honored with an award named after the late Danny Schechter, one of my journalistic role models.

Assange was recently charged under the Espionage Act for his part in obtaining and publishing secret U.S. documents supplied to him by Chelsea Manning, a former Army private. According to Rory O’Connor, Schechter’s longtime business partner, that is precisely why Assange has been named this year’s recipient of the Danny Schechter Global Vision Award for Journalism and Activism.

Schechter, who died four years ago, spent a long and productive career as a left-wing journalist, from his days as the WBCN “News Dissector” in Boston during the 1970s to a respected documentarian and author about issues such as apartheid, economic injustice, and media reform. Schechter was someone I probably checked in with a couple of times a year. In 2009, he and I covered a protest against internet censorship that broke out while we were attending a conference in Kazakhstan. Given all that, I wasn’t sure I was on board with O’Connor’s reasoning.

“The Assange case represents a threat not only to freedom of expression but also to the heart of American democracy itself,” O’Connor wrote. And in a retort to those who argue that Assange is not a journalist, O’Connor observed that Assange has in fact engaged in journalism of a sort: “Much of what he does, after all, involves selecting, editing, verifying and even contextualizing news material.”

Trouble is, Assange was a lot easier to defend back in 2010, when WikiLeaks and Manning were exposing American wrongdoing in the Iraq war, including looking the other way as Iraqi forces tortured prisoners. At that time, Assange appeared to be an honest exemplar of radical transparency. In those days I wrote a weekly column for The Guardian. And I argued that the Obama administration, which was reportedly looking into bringing charges against Assange on the theory that he had colluded with Manning, would be endangering First Amendment protections for mainstream news organizations.

I didn’t see then, and I don’t see now, how any news organization can be said not to have colluded with a source when it receives leaked documents. Didn’t the Times and The Washington Post collude with Daniel Ellsberg when they received the Pentagon Papers from him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?

The Obama administration, fortunately, decided to back off. But that was a long time ago. Assange, always a problematic figure, looks a lot worse today than he did then. In addition to extremely serious sexual assault charges against him and his role in Russia’s internet campaign against Hillary Clinton in the 2016 election, Assange spent years evading the authorities by holing up in the Ecuadorean embassy in London, where he reportedly degenerated into the guest from hell, paying little attention to his personal hygience and possibly even neglecting his cat.

All of which, counterintuitively, is why the Danny Schechter Award may actually make sense. President Trump has been trying to delegitimize journalism since he launched his campaign four years ago, denouncing news organizations as “the enemy of the people” and vowing to end some libel protections for the media. Seen in that light, Assange is the ideal conduit through which to undermine freedom of the press. If you don’t want to defend Assange, you may not get the chance to defend The New York Times. If investigative reporting is redefined as a criminal act, who will hold the powerful to account?

When Assange was first charged several months ago it looked like the Trump administration was deliberately avoiding the most provocative course of action. Assange was not initially charged under the Espionage Act, but rather was accused of actively helping Manning steal documents — an activity that most definitely is not protected by the First Amendment.

Even so, there were hints of what was to come. Mathew Ingram, writing at the Columbia Journalism Review, pointed out that the FBI’s affidavit described behavior on Assange’s part such as taking steps to keep his relationship with Manning secret, including the use of encrypted messaging. These days, many top news organizations actively solicit secret documents through encrypted portals. Here, for example, is The Washington Post’s. If Assange broke the law, what about the Post and all the others?

Ingram added: “The affidavit also says Assange collaborated with Manning on ‘the public release of the information’ — in other words, publishing. It goes on to allege that Assange broke the law in part by receiving classified documents without a security clearance, something investigative journalists often do.”

The threat became more ominous last month, when the Trump administration added Espionage Act charges to the case against Assange. The government has never followed through on threats to use the World War I-era law to punish news organizations for publishing classified documents, despite threats to do so after the Pentagon Papers were made public and after The New York Times reported on the George W. Bush administration’s secret (and probably illegal) domestic spying program.

Now Assange has emerged as a test case — and if he loses, it’s hard to imagine why our leading news executives would be exempt. “For good reason, press-rights advocates are far more alarmed now than they were last month when Assange was initially indicted,” wrote Margaret Sullivan, the Post’s media columnist. She added: “What’s alarming about the indictment is the way it would criminalize some of the basic functions of newsgathering and publication.”

In his essay announcing the Danny Schechter Award, O’Connor wrote, “The charges against Assange make the ultimate targets of his prosecution clear: journalists worldwide. Prosecutors are using the case against him to mask a blatantly political campaign to limit all journalists — a cornerstone of the Trump agenda often expressed by the president himself.”

Given all that, I’m not worried about Danny Schechter’s legacy being sullied. In fact, he’d probably love the idea of using an award named after him to shine a spotlight on Assange. Saints and sinners alike deserve the protection of the First Amendment — and sinners, after all, are more in need of it.

Talk about this post on Facebook.

Julian Assange, freedom of the press, and the meaning of journalism

Julian Assange. Photo (cc) 2011 by The Naked Ape.

The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?

As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.

The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.

Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.

WikiLeaks and the First Amendment

An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom

By Dan Kennedy | The Guardian | Dec. 16, 2010

President Obama has decided to pursue a dangerous strategy that could cause irreparable harm to freedom of the press as we know it. According to Charlie Savage of The New York Times, Attorney General Eric Holder is investigating the possibility of prosecuting WikiLeaks founder Julian Assange in connection with the 250,000 diplomatic cables stolen — according to the government — by army private Bradley Manning.

Read the rest at The Guardian. And talk about this post on Facebook.

Making sense of the intelligence agencies’ report on Russia and the election

Vladimir Putin. Photo (cc) by xx.
Vladimir Putin. 2015 photo via Kremlin.ru.

Like all of us, I am trying to make sense of the intelligence agencies’ report in which they found that the Russian government, going right up to the Shirtless Horseman himself, interfered in the 2016 election on Donald Trump’s behalf.

I have read all of it. And it is hard to overlook the lack of any actual evidence, which is apparently laid out in classified versions of the report. As a result, a number of observers are erecting “caution” signs to guard against anyone drawing a definitive conclusion. Scott Shane writes in The New York Times:

What is missing from the public report is what many Americans most eagerly anticipated: hard evidence to back up the agencies’ claims that the Russian government engineered the election attack. That is a significant omission: Mr. Trump has been expressing skepticism for months that Russia was to blame, variously wondering whether it might have been China, or a 400-pound guy, or a guy from New Jersey.

On Twitter, too, I’m seeing skepticism from the right and, of course, from the ubiquitous Glenn Greenwald, who’s been going off on it for hours. Here’s one example:

But I think focusing on the lack of evidence overlooks the central reality: Reams of evidence were put before us over the course of many months during the presidential campaign. Consider what we know for a fact:

  • Emails were stolen from the Clinton campaign and the Democratic National Committee.
  • Those emails landed at WikiLeaks, whose leader, Julian Assange, is clearly (and at the very least) a Russian ally.
  • WikiLeaks published multiple emails that were embarrassing to the Clinton campaign and none that reflected badly on Trump.

So yes, in one sense the intelligence agencies offered no evidence for their assertions. But in another, more important sense, we’ve already seen the evidence. The main role of the CIA, the FBI, and the NSA was to tell us that they agree, that we’re not crazy, and what we all saw play out was exactly what it appeared to be.

Did Russian interference cost Clinton the election? As Sam Wang has written at the Princeton Election Consortium, FBI Director James Comey’s horrendously misguided last-minute decision to reopen the investigation into Clinton’s private email server almost certainly put Trump over the top. Wang writes:

Opinion swung toward Trump by 4 percentage points, and about half of this was a lasting change. This was larger than the victory margin in Michigan, Pennsylvania, Florida, and Wisconsin. Many factors went into this year’s Presidental race, but on the home stretch, Comey’s letter appears to have been a critical factor in the home stretch.

Russian interference was less of a factor than Comey’s letter. But it nevertheless kept the media’s and the public’s attention on Clinton and emails, even though questions about her server and hacking by the Russians had nothing to do with each other. We can’t know for sure, but my sense is that Comey’s actions by themselves elected Trump, and that Russian subterfuge added to the damage.

What happens now? If it could somehow be shown that Trump himself had colluded with the Russians, he might face impeachment and even prosecution on espionage charges. The word treason tends to get thrown around way too lightly, but a Trump-Putin alliance to steal the election might very well qualify.

Such actions would require not just persuasive evidence that Trump was involved but also principled members of the Republican Congress and of Trump’s Justice Department. I wouldn’t hold my breath.

Talk about this post on Facebook.

Floyd Abrams throws a curveball

Legendary First Amendment lawyer Floyd Abrams delivered the Richard S. Salant Lecture on Freedom of the Press on Thursday evening at Harvard’s Shorenstein Center. And it was something of a surprise.

Rather than railing against the evils of government censorship, Abrams instead chose to focus on situations in which he believes the media have abused their freedoms. He was especially criticial of Julian Assange and WikiLeaks — not a new stance for him, but nevertheless counterintuitive given Abrams’ fierce defense of the First Amendment.

I put together a Storify about Abrams’ talk, which you can view by clicking here.

Edward Snowden and the peril facing journalism

Edward Snowden
Edward Snowden

This commentary was published earlier at The Huffington Post.

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.

Nick Daniloff on WikiLeaks

Nick Daniloff

My Northeastern colleague Nicholas Daniloff, a former foreign correspondent for U.S. News & World Report and UPI, was interviewed by the university press office earlier this week about the WikiLeaks story.

Daniloff offers some sharp insights, arguing that the document dump was more good than bad, and that the New York Times acted responsibly by giving the White House an opportunity to request redactions — some of which the Times went along with, some of which it didn’t. Daniloff adds:

[O]ver the long run, a great deal of this will be forgotten or swept under the rug, although older diplomats may well tell young diplomats, “Be careful with the Americans. They are so leaky that what you say may eventually come out. Be discreet; after all, you wouldn’t make copies of your love letters would you?”

Also worth reading: retired Times executive editor Max Frankel (via Jack Shafer), who, writing in the Guardian, offers this no-kidding observation:

Governments must finally acknowledge that secrets shared with millions of “cleared” officials, including lowly army clerks, are not secret. They must decide that the random rubber-stamping of millions of papers and computer files each year does not a security system make.

Meanwhile, Interpol has heightened its efforts to arrest WikiLeaks founder Julian Assange on sexual-assault charges. This Times story makes it sound like the agency isn’t trying very hard. It makes you wonder whether Western governments truly want to bring Assange to justice — or are just trying to discredit him.

Northeastern University photo by Lauren McFalls.

WikiLeaks and the media’s responsibility

Julian Assange

The latest WikiLeaks document dump gives us all much to think about. Unlike the earlier materials, about the wars in Iraq and Afghanistan, the latest revelations might actually make it more difficult for the United States to conduct foreign policy.

Is the world safer or less safe today now that we know King Abdullah of Saudi Arabia has urged the U.S. to take out Iran’s nuclear-weapons-in-the-making? Or doesn’t it matter? And would the documents be seen in a different light if the New York Times, the Guardian et al. had done nothing and let WikiLeaks release them on its own accord?

Like most journalists, I want to see as much information out there as possible. When government officials talk about the need for secrecy, I’m naturally suspicious. Yet as Timothy Garton Ash observes in the Guardian, secrecy is surely a tool that the State Department needs to use on occasion. He writes:

How can diplomacy be conducted under these conditions? A State Department spokesman is surely right to say that the revelations are “going to create tension in relationships between our diplomats and our friends around the world.” The conduct of government is already hampered by fear of leaks. An academic friend of mine who worked in the State Department under Condoleezza Rice told me that he had once suggested writing a memo posing fundamental questions about U.S. policy in Iraq. “Don’t even think of it,” he was warned — because it would be sure to appear in the next day’s New York Times.

U.S. Rep. Peter King, R-N.Y., sounds as though he wants WikiLeaks founder Julian Assange to be tried and executed. I think we can safely dismiss rants like that while still wondering whether there was a legitimate need to keep these matters secret.

I have not yet come up with an answer to that question. What I do know is that information technology now makes it possible for a group like WikiLeaks to dump far more dangerous documents than these into the public realm. Say what you will about traditional news organizations like the Times, but at least they give the government an opportunity to make a case as to why such documents shouldn’t be released.

One thing’s for sure: if the government is serious about keeping its secrets, it needs to do a much better job of protecting them.

Photo via Wikimedia Commons.

WikiLeaks’ uneasy alliance with the traditional media

Why did WikiLeaks work with traditional news organizations rather than go it alone in releasing the Afghanistan war logs?

In my latest for the Guardian, I argue that WikiLeaks founder Julian Assange learned from the way he handled the Apache helicopter video earlier this year that sometimes it’s better to be Daniel Ellsberg than Ben Bradlee. And that Stephen Colbert was right.