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In a post on Tuesday entitled “First they came for WikiLeaks, then the New York Times,” we wrote about how there is growing evidence that Congress and the Justice Department may be considering legal sanctions against traditional journalists who publish classified information — in other words, extending the kind of legal attacks they have been making on WikiLeaks to the traditional media such as the New York Times. In an emailed response to that post, former NYT executive editor Bill Keller said he strongly agrees that an attack on WikiLeaks’ right to publish such leaked documents is an implicit attack on the media as a whole, and that the mainstream media should protest any prosecution of the organization as a betrayal of the First Amendment.
In my post, I described how some members of a House Judiciary subcommittee seemed to be looking to experts for legal grounds under which they could charge journalists for publishing leaked classified information. The Department of Justice has also reportedly been warning reporters that if they publish such documents they could face prosecution — in the same way the DoJ is said to be pursuing a case against WikiLeaks and its controversial founder Julian Assange under the Espionage Act, (despite the fact that the government’s own researchers say using the act to go after journalists instead of leakers is a questionable strategy).
If WikiLeaks is under attack, journalism is under attack
My point was that if WikiLeaks, which I have argued before is a media entity — although one very different from the New York Times — is subject to that kind of prosecution for publishing classified information, then the NYT or any other traditional media outlet is in danger of being prosecuted as well. I also said that most mainstream media companies had been relatively silent on this point until now, but Keller noted in his email that he has repeatedly agreed that an attack on WikiLeaks is an implicit attack on media and journalism. As he put it:
I’ve said repeatedly, in print and in a variety of public forums, that I would regard an attempt to criminalize WikiLeaks’ publication of these documents as an attack on all of us, and I believe the mainstream media should come to his defense.
Keller went on to say that despite the rumblings from Congress that I referred to in my post, the government so far hasn’t made an official move against either Julian Assange or WikiLeaks. If a prosecution under the Espionage Act did in fact occur, Keller said he hoped to see news organizations of all kinds and press-freedom advocacy groups “filing briefs and otherwise objecting.” The NYT’s former executive editor also admitted that the newspaper’s relationship with Assange had been fractious, but said that personal feelings about the WikiLeaks founder shouldn’t prevent media organizations from coming to his defense:
You don’t have to embrace Julian Assange as a kindred spirit to believe that what he did in publishing those cables falls under the protection of the First Amendment.
Even if it isn’t journalism, it deserves protection
In a follow-up email, Keller also noted that he had made similar statements about the necessity of defending Assange and WikiLeaks’ publication of classified documents in a New York Times magazine piece excerpted from the introduction to “Open Secrets: WikiLeaks, War and American Diplomacy,” a book about the organization’s publication of thousands of diplomatic cables and the NYT’s role in that effort. In the piece, he said:
While I do not regard Assange as a partner, and I would hesitate to describe what WikiLeaks does as journalism, it is chilling to contemplate the possible government prosecution of WikiLeaks for making secrets public, let alone the passage of new laws to punish the dissemination of classified information, as some have advocated… criminalizing the publication of such secrets by someone who has no official obligation seems to me to run up against the First Amendment and the best traditions of this country.
As I wrote at the time Keller’s excerpt was published, it seemed as though the former NYT editor was grudgingly coming to admit that what WikiLeaks did was close enough to being journalism that — even if it wasn’t journalism with a capital J, or published by professional journalists — it deserved the full protection of the First Amendment. That’s a message it would be nice to hear from more journalists of Keller’s calibre.