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.

Judge extends censorship in plastic-handgun case

In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.

Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.

Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”

And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.

Massachusetts Attorney General Maura Healey, who joined the suit, is celebrating Judge Lasnik’s ruling. Healey, I should note, is a two-time winner of a New England Muzzle Award from WGBH News for her less-than-vigorous support of the First Amendment.

Talk about this post on Facebook.

In ‘The Post,’ Spielberg offers a hopeful message for our Trumpian times

Spielberg’s Nixon is the proto-Trump. Photo via Wikimedia Commons.

Previously published at WGBHNews.org.

Movies about historical events are often meant to tell us more about the present than the past, especially in the hands of an overly earnest director like Steven Spielberg. His 2012 film “Lincoln,” for instance, depicted a president who didn’t let his high principles get in the way of some down-and-dirty dealmaking with recalcitrant members of Congress. You know, just like Obama should have been doing.

Spielberg’s latest, “The Post,” is more deft and subtle than “Lincoln.” Still, it serves as much as a commentary on current-day events as it does as a drama about the press and the Pentagon Papers. Then as now, The New York Times and The Washington Post were competing to expose high-level government wrongdoing. Then as now, their nemesis was a vindictive president who hated the press. The message, at least for the anti-Trump audience that is most likely to be enthralled by “The Post,” is that journalism will save us. Help is on the way.

The Pentagon Papers were the government’s secret history of the Vietnam War. The documents showed that President Lyndon Johnson and other administration officials were aware that the war was going badly even as they publicly professed optimism — and thus allowed American soldiers to be killed for what they knew was a lost cause. This was especially galling to Richard Nixon, who was president in 1971, when the documents were leaked, and who was prosecuting the war with cruel gusto. The Times got and published the papers first, and Times partisans are grousing that Spielberg should have made a movie about that instead. For instance, Roy Harris wrote for Poynter that “the overall story of the Pentagon Papers as journalism seems somehow twisted by the Post-centric focus of the movie.”

Critics are missing the point. The Times gets its full due in “The Post” for breaking the story. But Post executive editor Ben Bradlee’s fierce attempt to play catch-up, and publisher Katharine Graham’s courageous decision to publish the documents against the advice of her lawyers and advisers, was a signal moment in American journalism, establishing the Post as the near-equal of the mighty Times.

The script for “The Post” reads like it was ripped from the pages of Graham’s autobiography, “Personal History,” and from David Halberstam’s magnum opus about The Washington Post and several other media institutions, “The Powers That Be.” The Post of 1971 was a financially marginal regional paper with more in common with The Boston Globe or The Philadelphia Inquirer than with the Times. Graham decided to raise much-needed cash by reorganizing the paper as a publicly traded company. The crisis over the Pentagon Papers blew up at exactly the same moment, putting the Post in real danger: if it published the documents and was found to have broken the law, its initial public offering could go down the tubes and the company could go out of business.

Graham made her decision after being called away from a social event, a sequence that is depicted faithfully in the movie. “Frightened and tense, I took a big gulp and said, ‘Go ahead, go ahead, go ahead. Let’s go. Let’s publish,’” Graham wrote in “Personal History.” And she quotes Bradlee as saying later:

That was a key moment in the life of this paper. It was just sort of the graduation of the Post into the highest ranks. One of our unspoken goals was to get the world to refer to the Post and The New York Times in the same breath, which they previously hadn’t done. After the Pentagon Papers, they did.

The U.S. Supreme Court ended up vindicating both the Times and the Post by ruling, 6-3, that the Nixon administration’s attempts to prevent publication were an unconstitutional abridgement of the First Amendment. As my WGBH News fellow contributor Harvey Silverglate wrote in The Boston Phoenix some years ago, that didn’t stop Nixon from attempting to prosecute the newspapers under the Espionage Act, a relic of World War I that is still with us. But Nixon’s efforts went nowhere.

“The Post” is not an eat-your-broccoli movie. It’s highly entertaining. Tom Hanks is terrific as Bradlee, and Meryl Streep turns in an accurate Graham, though it sometimes feels more like an elaborate impersonation than a fully realized role.

Streep’s Graham is the center of a subplot that, again, has as much to do with 2018 as it does with 1971. Although Graham had been leading the Post since 1963, when her husband, Phil Graham, shot himself in an apparent suicide, in “The Post” we see her grow and, finally, embrace her leadership role in a way that she hadn’t before. It’s a tale of female empowerment that is especially relevant right now. As my Northeastern colleague Meg Heckman wrote for USA Today:

In a refreshing departure from the shallow, oversexualized way Hollywood typically depicts women in journalism, Meryl Streep portrays Graham as a serious newspaperwoman navigating complex social and political challenges. Her role should be a blueprint for a new kind of popular culture, one that helps repair a climate where, as the #MeToo movement has revealed, media companies routinely get away with allowing sexual harassment and assault to fester.

One of my favorite characters in “The Post” is Nixon himself, whom we see back-to through a White House window, talking on the phone and threatening his enemies in the press. (We hear actual tapes of the Trickster.) And that brings me back to what “The Post” is really about.

In Donald Trump we have a president who hates the media and threatens his enemies like none since Nixon. Like Nixon, Trump is being investigated on multiple fronts — by House and Senate committees, by a special counsel, and by The New York Times and The Washington Post. Spielberg, in effect, is offering us a soothing message: Our institutions work. Look at what happened the last time.

But the past is not always prologue. The world of the 1970s was one without Fox, without alternative facts, and without a president who denounced press coverage he didn’t like as “fake news.” This time around, not only is it unclear whether the truth will be revealed — it’s even more unclear whether it will even matter.

Talk about this post on Facebook.

Ben Bradlee and the importance of private ownership

471661184_d792d22c04_oPreviously published at WGBHNews.org.

Several months ago I re-read what David Halberstam had to say about The Washington Post in “The Powers That Be,” his monumental 1979 book about the rise of the Post, the Los Angeles Times, Time magazine and CBS News.

As we celebrate the life and career of the Post’s legendary executive editor, Ben Bradlee, who died on Tuesday, it’s worth pondering the economic environment that made Bradlee’s charismatic brand of leadership possible: private ownership.

The Meyer and Graham families had been the sole owners of the Post since the 1930s. But in the early 1970s, publisher Katharine Graham decided to take her newspaper public. Here’s Halberstam:

So Katharine Graham went public. In the end she did it because she felt she had no choice. It was that or sell one of the television stations, which would provide instant cash but would narrow the base of the company. During the months that they prepared the stock issue [Post lawyer and Graham confidant] Fritz Beebe, whose office was in New York, talked frequently with the Post’s New York financial writer, Phil Greer, who was unusually knowledgeable about the workings of the market. Greer was pessimistic about the entire enterprise, and consisted it a drastic mistake. Wall Street, he believed, was a brutal partner, it was not interested in journalism or good writing, and it demanded not just profit but a relentless kind of profit; Wall Street wanted systems, and cost accounting, and a monitoring of expense accounts and higher productivity and lower expenditures. None of these things had anything to do with talent or covering the news. Greer did not believe that the Post could embrace Wall Street without changing. The Post would inevitably become, if not far more conservative on its editorial page, then far more conservative as an institution. When editors thought about covering stories or opening bureaus they would think of the accountants and the costs. What had made certain family-owned papers like The New York Times and the Postspecial in the past was a certain obliviousness to materialism, the power of the editors over the accountants, a willingness to settle for less than maximum profit. Now, however, simply being in the black would not be enough, the margin of profit would have to be larger, 15 percent or more a year to satisfy the stockholders. That was a powerful weapon for the Post’s accountants, for they could go into budget meetings and when editorial expenses were being discussed they could argue, not that the paper was losing money, but that the margin of profit was too low and that the stock might fall. The stock fall? What editor could argue back against that? Was a bureau in Johannesburg worth endangering the stock? The old paternalistic norms, some of them good and some of them bad, would be replaced by new modern computerized ones, some of them good and some of them bad, and all of them cold.

The decision had instant ramifications after the Post joined The New York Times in publishing the Pentagon Papers in 1971. As Halberstam writes, the Post could have been charged with a federal crime, which would have had serious negative consequences for the paper’s upcoming stock offering. Yes, the Post was on the verge of becoming a public company. But because Graham and Bradlee continued to run it as a highly personal institution, they held firm and went to press. Here’s Halberstam again:

Watergate, like Vietnam, had obscured one of the central new facts about the role of national journalism in America, a fact that helped explain the not entirely latent discontent at places like the Post and CBS and The New York Times, rich and powerful and successful as they were. Only very rich, very powerful corporate institutions like these had the impact, the reach, and above all the resources to challenge the President of the United States. Yet the price of that external influence was high to those institutions in an internal sense. The bigger and richer and more powerful the journalistic institution, the more bureaucratic its way of dealing with its own best people, the more distant and aloof its management. The Post was now part of a big rich corporation, 452nd in the Fortune list. Its standards and goals now resembled, not the standards and goals of small old-fashioned newspapers, but those of the other giant corporations on that list. For a highly individualistic profession like journalism there was an inherent contradiction in this. Even those Post reporters who were not entirely enamored of Bradlee, who thought his attention span too short, who objected to the fact that he sometimes preferred sexy stories to what they considered more serious ones, and who thought him too star-oriented, nonetheless welcomed his presence, highly personalized as it was, as a defense against the corporation. They believed that he was buying the newsroom time, that his connect to Mrs. Graham was so close that he could secure freedom of a sort that his successor could not.

In fact, the Post was often characterized as less engaging under Graham’s successor, her son Donald, and the executive editor who followed Bradlee, Len Downie. Whether that’s fair or not, there’s no disputing the reality that public ownership finally met its limits in 2013, when Don Graham sold the Post to Amazon.com founder Jeff Bezos.

Under executive editor Marty Baron, the Post is experiencing a revival, as Baron gets to expand coverage with the money that billionaire Bezos has proved willing to invest in the paper.

The New York Times Co.’s sale of The Boston Globe to financier John Henry in 2013 returned that paper to private ownership as well — and Henry and editor Brian McGrory have expanded the Globe’s coverage of politics and the Catholic Church, among other areas.

Neither Bezos nor Henry has been entirely benevolent. Bezos is trying to cut pension benefits for his employees. Henry has made reductions here and there, and some staff members continue to endure unpaid furloughs first instituted by the Times Co.

Yet there’s no question that both the Post and the Globe are better off in wealthy private hands than they were under the ownership of publicly traded corporations. News organizations are unique. The relentless focus on the bottom line that Wall Street demands inevitably hurts the journalism, which, in turn, harms the bottom line as the audience is driven away. Private owners can focus on the long term in a way that publicly owned corporations simply can’t.

They say it’s better to be lucky than good. Ben Bradlee was both. And we were the beneficiaries.

Photo (cc) by John C. Abell and published under a Creative Commons license. Some rights reserved.

 

On Greenwald, Kinsley is both right and wrong

Michael Kinsley
Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

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.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes
Charles Evans Hughes

This commentary was first published at The Huffington Post.

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.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

A chilling act of intimidation and harassment

Glenn Greenwald
Glenn Greenwald

This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.

Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)

What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.

Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.

The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.

The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.

And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.

Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.

Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.

What “special protections” is Carr talking about?

David Carr
David Carr

There are a couple of problems with David Carr’s column in The New York Times on Glenn Greenwald and the line between journalism and activism.

First, Greenwald isn’t really a close call. He is an opinionated liberal columnist and blogger who works for a large, well-regarded news organization, The Guardian. The key: he’s independent. No advocacy group is paying his salary. If we must draw lines, Greenwald is well on the journalistic side of the divide.

What I really want to see more discussion of, though, is Carr’s assertion that “when it comes to divulging national secrets, the law grants journalists special protections that are afforded to no one else.” What is Carr talking about?

As I explained recently, the Espionage Act, under which Edward Snowden has been charged in the National Security Agency leaks, makes no distinction between leaking classified information and publishing classified information.

The question of whether to prosecute news organizations came up after the Pentagon Papers and again after the revelation of the Bush administration’s illegal wiretapping program. U.S. Rep. Peter King, R-N.Y., has called for journalists to be prosecuted over the Snowden leaks.

Yes, there are limited protections for journalists trying to shield their sources in 49 states. But I don’t think that’s what Carr was referring to. In any case, there are no shield protections at the federal level.

So help me out here. What do you think Carr has in mind?

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.