I’m going to do something I hope I never have to do again and quote the oft-rightly-maligned infowars.com: “there is a war on for your mind.”
Allow me to explain.
Since the beginning of summer, we’ve been hearing increasingly alarming reports of government abuse of power, culminating in the ongoing revelations from Guardian journalist Glenn Greenwald and NSA leaker Edward Snowden. Among the most alarming, from a journalism-centric point of view, have been the discovery that the Department of Justice surreptitiously swiped phone records from the Associated Press in 2012 and that the same DOJ had accused FOX News reporter James Rosen of conspiracy in order to gain access to his phone records and emails.
And yet, bigger than all the rest of those scandals put together has been the response from other journalists to Glenn Greenwald — a former constitutional and civil rights litigator and blogger for Salon who, since getting hired by the Guardian last year, has been doing a lot more work that squarely qualifies as journalism (including the NSA story).
Andrew Ross Sorkin, co-host of CNBC’s Squawkbox, author of the HBO-miniseries-ified book “Too Big To Fail” and the person who wrote about checking up on Occupy Wall Street to see if they were in any way a threat to his high-powered friends for the New York Times, went on his program last week saying he’d “almost” arrest Greenwald, a statement he later apologized for:
SORKIN: “Let’s talk about some of the headlines, the big one this morning, uh, there is heavy security this morning at Moscow’s airport today. National Security Agency leaker Edward Snowden — yep, he’s there. There is speculation he is planning to fly to Havana on route to Ecuador. The government of Ecuador has confirmed it is considering an asylum application for Snowden. He faces American espionage charges now, after he admitted to revealing classified documents — I gotta say, I feel like A) we’ve screwed this up, to even let him get to Russia, B) clearly the Chinese hate us to even let him out of the country, I mean that says something. Russia hated us and we knew that beforehand — and now, I mean, my second piece of this, I told you this in the green room, I’d arrest him and now I’d almost arrest Glenn Greenwald, who’s the journalist who seems to be out there — he wants to help him get to Ecuador.
David Gregory, host of Meet the Press, asked Greenwald on his program last week if Greenwald should be charged with crimes for “aiding and abetting” Snowden:
GREGORY: To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?
(John Light, in an editorial on Bill Moyers’ website about the exchange, wondered aloud whether Gregory thinks Greenwald should receive the same First Amendment protections as a journalist, saying, “But Greenwald’s role in the Snowden NSA story has been that of a journalist, part of a long tradition of reporters who uncover information by talking to those who have it, then analyzing and presenting what they’ve found out to the public. Attempts by big media journalists like Gregory to establish who is worthy of the constitutional protection afforded to the press lie on the edge of a slippery slope.” Right on, John Light. Right on.)
The most banal attack on Greenwald’s credibility as a journalist has come from the New York Daily News, who published a hard hitting investigative piece about, among other things, his dog being larger than regulation for the New York apartment he was living in at the time. This inspired the #ggscandals tag on Twitter, which has been highly amusing to peruse and participate in.
But anyway, all this talk about whether Greenwald should be charged with crimes and thrown in prison from Sorkin, Gregory and others (including this odd editorial from the Washington Post) has seemingly reignited the debate over who can — and cannot — be a journalist generally.
Sen. Dick Durbin, a Democrat from Illinois (and not a journalist), wrote an op-ed today for the Chicago Sun-Times musing over just that very question. Of course, he is doing so from the perspective of passing a federal “media shield law,” but many of the same tropes inherent in the discussion among journalists over who qualifies as one of them apply here.
In his article, Durbin first asks, ”Is each of Twitter’s 141 million users in the United States a journalist? How about the 164 million Facebook users? What about bloggers, people posting on Instagram, or users of online message boards like Reddit?”
The fact that the Senator from Illinois knows about Reddit is a bit discomfiting, but the question, at least at this point, is valid. I believe the answer lies in the context of how those social networking platforms or blogging hosts are used. You’d be hard-pressed to find me calling a food or poetry blogger a journalist right off the bat, unless they cover food news or report on events through poems (which I would be seriously impressed by).
In that same vein, a teenager posting their thoughts and feelings on Facebook or Twitter wouldn’t necessarily qualify as being a “journalist,” but someone posting updates from a protest or public speaking event might. It’s also worth mentioning that social media is very often an important tool in the modern journalist’s repertoire, which further muddies the question.
Durbin continues, mentioning the 1972 Supreme Court case of Branzburg v. Hayes, which set up the precedent of journalistic protection of sources, and follows that up by saying, “The vagueness of this decision has led 49 states, including Illinois, to recognize a journalist privilege by statute or common law. These laws state that a protected journalist cannot be compelled to disclose sources or documents unless a judge determines there is an extraordinary circumstance or compelling public interest.”
(For interested parties, here is Oklahoma’s statute on journalistic privilege regarding source protection.)
Now, before going on, it’s worth pointing out that no one is arguing that every single person who has ever opened an account on Facebook, Twitter, Instagram or any of the other social media sites is a journalist or should enjoy the same shield protections as such. In the examples above, shield protections don’t apply because they’re not necessary. You don’t need to hide sources from a court when you’re posting about the coffee you just had on Tumblr.
Apparently, Durbin has misunderstood — or just completely missed — that point:
Everyone, regardless of the mode of expression, has a constitutionally protected right to free speech. But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.
The media informs the public and holds government accountable. Journalists should have reasonable legal protections to do their important work. But not every blogger, tweeter or Facebook user is a “journalist.” While social media allows tens of millions of people to share information publicly, it does not entitle them to special legal protections to ignore requests for documents or information from grand juries, judges or other law enforcement personnel.
Except when people using those platforms are acting as journalists. Or when people are journalists but their peers decide they want to continue calling them bloggers.
Durbin ends his editorial by mentioning the recent NSA leak and AP scandal.
“The leaks of classified information about the NSA’s surveillance operations and an ongoing Justice Department investigation into who disclosed secret documents to the Associated Press have brought this issue back to the forefront and raised important questions about the freedom of speech, freedom of the press and how our nation defines journalism,” he said. “It’s long past time for Congress to create a federal law that defines and protects journalists.”
To the extent that I might agree with the creation of a federal shield law, I don’t think Sen. Durbin has done a decent enough job delineating between his defined classes. Any attempt to pass a law “defin(ing) and protect(ing) journalists” would do much more harm than good if they decided to disqualify social media and bloggers entirely. But he shouldn’t feel too bad. This is, after all, a question that more than one person has spilled gallons of ink and spent hours, days, years of their life trying to find the answer to.
Margaret Sullivan, the New York Times’ Public Editor and awesome person to follow in general if you’re interested in these kinds of things, wrote an article for her NYT blog pondering the same question Durbin raises. Here’s her answer:
But for now, I’ll offer this admittedly partial definition: A real journalist is one who understands, at a cellular level, and doesn’t shy away from, the adversarial relationship between government and press — the very tension that America’s founders had in mind with the First Amendment.
Those who fully meet that description deserve to be respected and protected — not marginalized.
Boom.