Criminalizing Journalism: Manning, Media and You

On Tuesday, Bradley Manning was acquitted of “aiding the enemy” for leaking 700,000 classified government documents, including a video of an American airstrike in Baghdad that killed 12 civilians, among them two Reuters journalists.

While aiding the enemy was the most serious charge he faced, Manning was still found guilty of numerous counts of espionage and other charges, which could land him in jail for the rest of his life.

And while many journalists are breathing a sigh of relief about the aiding-the-enemy decision, we shouldn’t forget how hard the government pushed for that particular conviction.

To show that Manning was aiding the enemy, the government had to argue for the narrowest definition of journalism possible. Essentially, it had to show that sending classified documents to WikiLeaks was different from supplying the same material to theNew York Times.

This question came to a head the day Harvard legal scholar Yochai Benkler testifiedabout the role that WikiLeaks plays in a networked fourth estate. Benkler’s testimony was based on a 2011 piece he wrote for the Harvard Civil Rights Review in which heargued that “As a matter of First Amendment doctrine, WikiLeaks is entitled to the protection available to a wide range of members of the fourth estate, from fringe pamphleteers to major press organizations.”

In a different piece, Benkler wrote that the government’s dogged pursuit of these charges “makes the Manning prosecution a clear and present danger to journalism in the national security arena.” He continues:

The prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely defined national security leaks, a big stick that could threaten not just members of the military, but civilians too.

And this is why we should all be concerned about this case. The questions the government is asking about WikiLeaks could be asked of any of us.

Criminalizing Journalism

This case is part of a troubling trend in which our government is cracking down on acts of journalism.

We’ve seen this in the response to Glenn Greenwald’s reporting on the documents leaked by former national security contractor Edward Snowden. One congressman even called for the prosecution of Greenwald himself.

And look at how hard the Justice Department is pushing to have New York Timesjournalist James Risen testify in itscase against Jeffrey Sterling, a former CIA employee who was charged with violating the Espionage Act after he leaked classified information.

Earlier this month, a federal appeals court panel ruled that Risen did not have any First Amendment rights to protect his sources and said he must testify or go to jail (which he has pledged to do rather than identify his sources).

Press freedom advocates suggest the government has all the information it needs and that Risen’s testimony isn’t necessary. But as Risen told New York Times Public Editor Margaret Sullivan, “They just keep coming at me.”

This aggressive pursuit of Risen calls into question the Justice Department’s recently revised guidelines for dealing with the press during investigations. Following revelations that the Justice Department had secretly seized phone records from the Associated Press and labeled a Fox News journalist a co-conspirator in a leak case, President Obama called on the attorney general to strengthen press protections.

But those revised guidelines are based on a narrow definition of who counts as a journalist. And now many of those rules may be codified into law as the House and Senate consider a journalist “shield law.”

Both the Senate and House versions of the shield-law bill have troubling language that would exclude bloggers, citizen journalists and some freelancers from the protections. Sen. Dick Durbin recently wrote that it was time for Congress to define who is a journalist because “not every blogger, Tweeter or Facebook user is.’”

Durbin’s comments echo a general skepticism and suspicion of independent and citizen journalists that we see from policymakers and police across the nation. Yet it’s the independent journalists — who lack the backing of major institutions —who may need a shield law the most.

Moreover, blogs, Twitter and Facebook don’t define journalism; they’re tools just like microphones and printing presses. What’s different is that these new tools are available to everyone.

We the Media

We should see the Manning verdict in the context of a mounting press freedom crisis that impacts all of us. As Dan Gillmor wrote in the Guardian, “the public needs to awaken to the threat to its own freedoms from the Obama crackdown on leaks and, by extension, journalism and free speech itself.”

We live in a time when anyone may commit an act of journalism. The person who sets up a Facebook page to cover the hurricane hitting her community. The person who uses her smartphone to record police officers killing an unarmed teen on a train platform. The person who live-blogs a court case from start to finish. Each of these people is participating in journalism in ways we should protect and celebrate.

Across the country court battles and legislative fights are threatening people’s First Amendment right to gather and disseminate news and information. Photographers arebeing arrested almost weekly, Ag-gag laws are labeling videographers as terrorists and more than 100 journalists and citizen reporters have been arrested in the U.S. in recent years. These fights are our fights, and we need a broad public response.

We should be glad that this military court did not equate Manning’s actions to aiding the enemy, but this case is part of a much bigger debate, and one the public has largely been left out of. That needs to change.