Is Julian Assange a Journalist?

As part of a panel discussion this weekend on the question of “Who is a Journalist Now?” I provided an overview of the federal shield law currently pending before Congress.  Most debate about the proposal has focused on whether it covers bloggers and the exception it makes for cases involving national security.  In this post, I want to focus on an aspect of the proposed law that has received less attention:  the WikiLeaks exception.

Among the exceptions included in the Senate version of the bill is language denying protection to “any person or entity whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.”  Although not mentioned by name, WikiLeaks is the clear target of this provision.  Many members of Congress have expressed opposition to giving WikiLeaks a testimonial privilege, and it was largely as a result of the website’s 2010 release of classified war documents that the last attempt to pass a federal shield law failed.

But although a federal shield law may have no chance of passing without the exclusion of WikiLeaks, the exception raises an interesting question:  Is WikiLeaks – and by extension, Julian Assange – engaged in journalism?  Or are its activities fundamentally different from that of traditional media?

If we rely on the terms of the proposed law itself, the answer would seem to be the former.  The House proposal defines journalism as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”  The Senate proposal is similar, defining a “covered journalist” as anyone who, “with the primary intent to investigate events or procure information” on matters of public interest, engages in “the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting, or publishing on such matters.”

WikiLeaks easily satisfies both definitions.  It gathers, collects, and publishes material of public interest, and it does so with the primary intent to investigate events and procure material for dissemination to the public.

Some have argued that WikiLeaks is not engaged in journalism because it doesn’t analyze or contextualize the material it publishes; it merely serves as a dumping ground for information.  Providing analysis and context is certainly a hallmark of excellent journalism.  But the extent to which news outlets do this varies widely.  A front-page political story in the New York Times usually contains plenty of analysis and context.  A police blotter in a local newspaper usually does not.  Yet it would be hard to argue that individuals who compile and publish the police blotter – or sports box scores or stock quotes or historical weather data – are not engaged in journalism.

In any event, it’s inaccurate to say that WikiLeaks does not provide context and analysis for its reports.  Its release of the video documenting the 2007 Baghdad airstrike was titled “Collateral Murder,” included a quote from George Orwell, and contained text that was overtly editorial, as Stephen Colbert correctly pointed out when he interviewed Assange in 2010.

Some media advocacy groups have also faulted WikiLeaks for not adhering to the code of ethics published by the Society of Professional Journalists, which calls on journalists to make themselves accountable for their work and to minimize the harm they do.  As a former newspaper reporter and undergraduate journalism major, I should note that I never even knew such a code existed until recently, and I am quite confident that most of my colleagues did not either.  That aside, Assange has made himself accountable by acknowledging that he is the founder and editor-in-chief of WikiLeaks.  And while minimizing harm may be an admirable aspiration, it’s hard to see how that can serve as part of a legal definition of what counts as journalism.

Indeed, it is likely because WikiLeaks meets any plausible legal definition of journalism that the Senate felt obligated to carve out an exception targeted directly at the website.  So perhaps the question is not so much whether WikiLeaks is engaged in journalism as whether there is good reason to deny it the same testimonial privilege that other journalism outlets would enjoy under the proposed law.

The reason suggested by the Senate exception is that WikiLeaks is not entitled to protection because it exists primarily to publish unlawfully leaked documents.  But why should that be a basis for exclusion?  Most news outlets are perfectly comfortable publishing leaked documents whenever they can get their hands on them.  And the Supreme Court made clear in Bartnicki v. Vopper that publishing unlawfully intercepted communications is protected under the First Amendment as long as the publisher played no part in the unlawful interception and the material is of public interest.

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.  If WikiLeaks is guilty of solicitation, then my guess is that a large part of the Washington press corps is guilty too.

The effort to exclude WikiLeaks from the federal shield law is not only misguided; it is probably unnecessary.  For one thing, it’s unclear whether WikiLeaks even knows the identities of any of its sources.  Its website is reportedly set up to allow sources to contribute anonymously.  More importantly, in most cases in which the government would want to subpoena WikiLeaks, it seems likely that it could rely on the proposed law’s national security exception.

So what is the purpose of the WikiLeaks exception?  As with much legislation these days, it seems to be largely symbolic.





You may also like...

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.