By Kevin D. Williamson
Tuesday, May 28, 2019
In re: the Julian Assange case, Glenn
Greenwald makes an important point, that as a First Amendment question, it
does not matter whether Assange is a journalist.
Press freedoms belong to everyone,
not to a select, privileged group of citizens called “journalists.” Empowering
prosecutors to decide who does or doesn’t deserve press protections would
restrict “freedom of the press” to a small, cloistered priesthood of privileged
citizens designated by the government as “journalists.” The First Amendment was
written to avoid precisely that danger.
That is well said, and the reminder is both urgent and
necessary at this particular moment in our history. Greenwald continues:
Most critically, the U.S. government
has now issued a legal document that formally declares that collaborating with
government sources to receive and publish classified documents is no longer
regarded by the Justice Department as journalism protected by the First
Amendment but rather as the felony of espionage . . . .
And there is the problem. If the First Amendment does not
create a set of privileges for a caste known as “journalists,” then journalists
can be prosecuted for violating the law — including
the laws governing the dissemination of classified information — in the
same way any ordinary citizen would be.
The dissemination of classified documents is illegal in many
circumstances. It is, under what seems to me the plain meaning of the law,
precisely the felony of espionage in at least some cases. To decline to
prosecute those crimes in the interest of enabling journalism is to create
exactly the kind of professional caste privilege that Greenwald rightly warns
against. We cannot simultaneously hold that the problem is “empowering
prosecutors to decide who does or doesn’t deserve press protections” and then try
to solve that problem by empowering
prosecutors to decide who does or doesn’t deserve press protections.
I am not a lawyer and do not pretend to speak
authoritatively about the Assange case, but the language of the federal
criminal code appears — to my great surprise — clear enough about this matter.
And that is the fundamental issue: The government has too
broad and sweeping power when it comes to classifying information, it uses that
power too eagerly and too thoughtlessly — and too arrogantly, and too corruptly
— for that power to be fully compatible with a free and open society. The
solution to bad laws is to repeal or reform the law, not to construct a
supplementary social theory to support its selective application.
In keeping with Greenwald’s concerns, writing a
journalism carveout into the statute would be a disastrous undertaking, because
it would amount to licensing journalists, which would radically reconfigure the
First Amendment and our understanding of free speech in an unacceptable way. That
is one significant problem with “campaign finance” laws that subject political
speech to legislative discipline and then pretend to make an exemption for news
media.
The more reasonable approach — which is naturally the
more difficult one — would be to acknowledge that the government has a
legitimate interest in keeping certain secrets but to narrow its discretion and
scope in making those decisions. One important reform would be to eliminate the
executive’s effective monopoly on declassification decisions, moving some of
that authority into the House of Representatives or the Senate.
And then, if the New
York Times receives a classified document through a criminal act or comes
into possession of a document the publication of which would be a criminal act,
it can make an editorial decision about whether the importance of the story
justifies an act of civil disobedience and, if it comes to it, dare the
government to prosecute it. Many Americans have sat in jail cells for honorable
causes.
If we accept the proposition that the government has a
legitimate interest in keeping secrets and in using the law to further that end
— and there are some radical libertarians who reject that — and we also accept
that the First Amendment applies in the same way to all citizens, then it
follows that there will be prosecutions for violating that law, and that acting
as a journalist does not provide immunity from such prosecution.
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