By Adam L. Penenberg
Friday, January 28, 2011; 8:05 PM
The State Department called Julian Assange, the founder of the stateless anti-secrecy organization WikiLeaks, "an anarchist." Sarah Palin taunted him as "an anti-American operative with blood on his hands." Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) declared Assange an "agitator intent on damaging our government." And Rep. Darrell Issa (R-Calif.), the new head of the House oversight committee, plans hearings on WikiLeaks and has blasted Attorney General Eric Holder for not cracking down on the group.
His critics may not agree on what Assange is, but no matter where they fall on the political spectrum, they agree on what he is not: a journalist. Therefore neither he nor WikiLeaks should expect First Amendment protections for the unauthorized release of sensitive, embarrassing and classified diplomatic and military documents.
Naturally, Assange, a 39-year-old Australian computer hacker, political activist, software developer and thorn in the side of secrecy-obsessed governments, sees himself in a different light - as an editor and publisher. And in a preemptive strike against U.S. authorities, Assange has wrapped himself in the cloak of journalism. Perhaps that's why WikiLeaks has peppered its "about" page with the words "journalism" and "journalist," which appear a combined 19 times, and as a self-described "not-for-profit media organization" lists its primary goal as bringing "important news and information to the public."
Bill Keller, executive editor of the New York Times, wrote in a new Times Magazine articl that, in working with Assange to publish revelations from WikiLeaks' cache of documents, he always considered him a source, not a collaborator - or a journalist. But there is no clear definition of the terms "journalist" or "journalism." The best we have comes from laws and proposed legislation which protect reporters from being forced to divulge confidential sources in court. In crafting those shield laws, legislators have had to grapple with the nebulousness of the profession to determine who and what must be protected, and why.
Based on the wording of many of these statutes, Assange fits the definition of a journalist, and what WikiLeaks does qualifies as journalism. This presents a significant challenge for Holder, who has launched a criminal probe and "personally authorized" a number of steps "to hold people accountable" for the document leaks.
In the United States, there is ample statutory authority for punishing individuals who leak classified information, but the Justice Department has never prosecuted a journalist for reporting on a leak. How could prosecutors go after WikiLeaks while sparing the New York Times, as well as the Guardian in Britain, Germany's Der Spiegel, Le Monde in France and El Pais in Spain, all of which published articles based on the cache of State Department cables that WikiLeaks provided?
To further complicate matters, a WikiLeaks competitor called OpenLeaks, founded by two former WikiLeaks staffers, just launched, and a number of other like-minded leak-anonymizing clearinghouse sites are in the works. Al-Jazeera recently ginned up its own WikiLeaks-like repository for whistleblowers. Along with the Guardian, it began publishing articles about its first score, more than 1,600 documents from a decade of Israeli-Palestinian peace talks. The New York Times may follow suit. Leaking, or courting leakers the way Assange does, is fast becoming the province of the journalistic establishment.
About two-thirds of the states have adopted shield laws, virtually all of them drawing a clear line between professional journalists and everybody else. Some are surprisingly expansive in their definitions of the "news media" and inclusive in whom they cover. Minnesota, for instance, seeks to protect the "free flow of information," as does Nebraska. The District of Columbia views news media as "any printed, photographic, mechanical, or electronic means of disseminating news and information to the public."
New York offers protection to anyone "engaged in gathering, preparing [or] collecting . . . news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Michigan casts an even wider net, bestowing the title of journalist on anyone "involved in the gathering or preparation of news for broadcast or publication."
It's almost as if the lawmakers had WikiLeaks in mind when they crafted these statutes. As for states with shield laws that would probably not cover WikiLeaks, theirs have not been updated in decades. They missed the rise of 24-hour cable news, citizen journalism and social media. Those states recognize narrower definitions of journalism, gravitating toward decidedly "mainstream media" interpretations.
Not only do they exclude WikiLeaks, they ignore online reporters, bloggers, book authors, freelance writers and even magazine staffers. In Indiana, a journalist is someone "connected with or employed by" a newspaper, wire service, or "licensed radio or television station," period. Kentucky opts for even greater simplicity: "Newspaper, radio or television broadcasting station personnel need not disclose source of information." By implication, everyone else would.
The House of Representatives in 2007 passed a federal shield law, which included a last-minute amendment that required anyone seeking protection to earn "a substantial portion of [their] livelihood" from journalism. This was a dart aimed at bloggers, who were, depending on your point of view, either citizen journalists democratizing media or bloviating loudmouths posting vitriolic screeds on personal Web sites between trips to the refrigerator. As the Senate has worked on its version of a shield law, however, blogs have moved even further into the mainstream, partly because virtually every newspaper, magazine and online news organization co-opted them for their own sites.
Over the past few years one of the blogosphere's political champions has been Sen. Charles Schumer (D-N.Y.), the lead author of the Senate measure. Initially he tried to expand on the language in the House bill by defining a journalist as any person who has the intent to disseminate information to the public. (This sounds a lot like WikiLeaks' stated mission.) But to get the bill through committee, he scaled back the language so that his version mirrored the House measure.
In August, after WikiLeaks released 91,000 documents related to the war in Afghanistan, Schumer announced that he would amend the Senate's "Free Flow of Information Act" to exclude the group. Schumer contended that WikiLeaks could never capitalize on the legislation because it does not fulfill the "definition of a journalist," which requires it to regularly engage in "legitimate newsgathering activities." The bill already would give judges the authority to waive protections if critical national security concerns hung in the balance. But just in case, Schumer and Feinstein have been working with the newspaper industry on language to prevent WikiLeaks from shimmying through any loopholes.
It's a daunting task - to get the wording just right, they'll need an electron microscope. What constitutes "legitimate newsgathering activities"? How do you differentiate between what WikiLeaks does and what the New York Times does? The Times, like other news outlets, often relies on sources passing on confidential - even classified - information that it makes public, and it has published a series of articles based on the documents that WikiLeaks procured.
As for critical national security concerns, thus far, the Pentagon has conceded that the release of the Afghan war documents has led to very limited, if any, tangible harm. The roughly 2,000 diplomatic cables that WikiLeaks has collaborated with media organizations to publish also appear to have been more embarrassing than destructive to U.S. foreign policy interests.
Times editor Keller, who worked closely with Assange, has said that if Assange is "a journalist, he's not the kind of journalist that I am," nor is WikiLeaks "my kind of news organization." It's not, however, Keller's or Schumer's definition of journalism that is relevant. It's the definition under the law. That makes Assange, whom Keller described as "arrogant" and "conspiratorial," very difficult - if not impossible - to prosecute.
Assange has given American politicians and pundits migraines by using the government's own words and documents against it. If the Obama administration chooses to prosecute, Assange will probably use its own laws against it, too.
Adam L. Penenberg is an associate professor of journalism at the Arthur L. Carter Journalism Institute at New York University and chair of the institute's ethics committee. Follow him on Twitter @penenberg.