Is Julian Assange a Journalist?

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4 Responses

  1. Orin Kerr says:

    1) Given that the scope of a shield law is a policy question, why does it matter whether Assange is “engaged in journalism”? If Congress is enacting a law, it doesn’t have to legislate only in categories: Can’t Congress say that some journalists are protected and others aren’t protected just because it wants to protect some people that it thinks are doing good things while not protect others doing bad things?

    2) On why to treat Assange differently, you say, “One might try to distinguish WikiLeaks from other news outlets on the basis that it explicitly encourages leaks and therefore is soliciting unlawful disclosures. But I’m not sure what WikiLeaks does is all that different from what Bob Woodward did with Deep Throat or what any good investigative journalist does every day.” I’m not sure that’s right; I don’t know how journalism works in that area. But even if you’re right, why isn’t the consequence that the Assange exception should be broader? For it to make more sense, perhaps the exception should not extend to any criminal conduct by a journalist, whether by Assange or the New York Times. See, for example, the similar exception in the Privacy Protection Act. See 42 U.S.C. 2000aa(b)(1).

  2. Shag from Brookline says:

    Doesn’t the WikiLeaks exception require addressing the distinctions between the speech and press clauses of the First Amendment? How distinct are these clauses and to what extent? Is there overlap? Does one trump the other? How does originalism (of whichever variety, past and current) address the distinctions? Journalism and journalists are not specifically referenced in the First Amendment or other parts of the Constitution. Some scholars have viewed the “press” as the technology of the time in 1789. How do changes in technology over the years apply today?

  3. Thomas Healy says:

    In response to Orin, the reason it matters is because some people have defended the exception on the ground that WikiLeaks is not engaged in journalism. If they’re wrong about that, then we need to look for another justification for the exception. Also, if WikiLeaks is engaged in journalism, it’s possible that specifically targeting it for exclusion could violate the free press clause. There is case law holding that government cannot discriminate among media organizations on the basis of content. Of course, Congress will say it’s discriminating on the basis of how the information is gathered, not content, but I don’t think that’s a slam-dunk argument.

    As for expanding the exception to apply to any journalist who engages in criminal conduct (such as solicitation), I’m not sure that accomplishes Congress’ goal of excluding WikiLeaks since I don’t think it’s clear that WikiLeaks is actually committing the crime of solicitation. And if we broaden the meaning of solicitation to make sure WikiLeaks is excluded, I think we’re going to deter a lot of investigative journalists from doing their job for fear they will either be prosecuted for soliciting leaks or will lose the benefit of the federal shield law.

  4. Orin Kerr says:

    Thomas, thanks for the reply. On part 2, just a comment: that sounds like an issue for substantive criminal law more than a shield law.