Saturday, May 24, 2014

TNR DNR

Michael Kinsley really fucked this one up.  Reviewing Glenn Greenwald's new book, he writes:
Through all the bombast, Greenwald makes no serious effort to defend as a matter of law the leaking of official secrets to reporters. He merely asserts that “there are both formal and unwritten legal protections offered to journalists that are unavailable to anyone else. While it is considered generally legitimate for a journalist to publish government secrets, for example, that’s not the case for someone acting in any other capacity.”
Here at last, I thought, is something Greenwald and I can agree on. The Constitution is for everyone. There shouldn’t be a special class of people called “journalists” with privileges like publishing secret government documents.
I absolutely agree with Kinsley on this.  Journalists should not get special dispensation for reciept and/or reporting of offical secrets.  The faulty premise of that dispensation is that journalists aren't receiving state secrets for their own benefit, but rather so they can report them to the public.  If so, the dispensation should be for those who disclose secrets for a public good, regardless of their profession.  

Here's where Kinsley goes off the rails:
The trouble is this: Greenwald says that Snowden told him to “use your journalistic judgment to only publish those documents that the public should see and that can be revealed without harm to any innocent people.” Once again, this testimony proves the opposite of what Greenwald and Snowden seem to think. Snowden may be willing to trust Greenwald to make this judgment correctly — but are you? And even if you do trust Greenwald’s judgment, which on the evidence might be unwise, how can we be sure the next leaker will be so scrupulous?
...
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
Well why not?(1)  Is it not concievably possible that someone in the govermment, acting under the enabling protections of the Official Secrets Act(2), is a bigger dick than Glenn Greenwald?  And might cause greater harm than GG could, in the exercise of that dickishness?

How about: Someone gets to decide, but that someone cannot be the someone (or the Administration) who benefits from deciding in favor of secrecy.  As Kinsley might say -- the Constitution is for everyone.  There shouldn't be a special class of people called "the government" with privileges like making their violations of the constitution secret.

(1) I see Erik Wemple asks the same question.
(2) The Offical Secrets Act is not an actual U.S. law, but then again, Kinsley's "secret government documents" isn't an actual legal concept either.

20 comments:

LT said...

You completely agree with this?

" The Constitution is for everyone. There shouldn’t be a special class of people called “journalists” with privileges like publishing secret government documents. "

That's embarrassingly dumb, as "journalists" are exactly the *one and only* group of people actually mentioned in the Consttution as being sort of "special" in this regard. (Okay "press," precisely, but you know what I mean.)

LT said...

" Is it not concievably possible that someone in the govermment, acting under the enabling protections of the Official Secrets Act(2), is a bigger dick than Glenn Greenwald? And might cause greater harm than GG could, in the exercise of that dickishness? "

Exhibit 1: Iraq War.

Julia said...

Special privileges? No. Responsibilities, yes.

However, I think Kinsey is harking back to some quasi-mythical time when Greenwald would have had an inside source who would have been willing to help him sort through the information and figure out what bits posed some sort of harm to innocent (whatever that means) people.

As for anything else, my first thought was of the reporting on the Watergate break in. LOL.

Roger said...

"The press" means the printing press, not journalists. I am not aware that the drafters of the Const. intended to describe a profession as opposed to a means of communication.

See, for example, this not particularly authoritative source:

press ... Specific sense "machine for printing" is from 1530s; this was extended to publishing houses by 1570s and to publishing generally (in phrases like freedom of the press) from c.1680. This gradually shifted c.1800-1820 to "periodical publishing, journalism." The press, meaning "journalists collectively" is attested from 1921 (though superseded by media since the rise of television, etc.).

http://www.etymonline.com/index.php?term=press

In any event, the phrase "Congress shall make no law ...abridging the freedom of speech, or of the press" makes clear that the right to speak freely belongs to all citizens, not just journalists.

Montag said...

Umm, I think Orwell has already spoken, from the grave as it were, on this matter: "Journalism is printing what someone does not want printed. Everything else is public relations."

Kinsley is a PR man.

LT said...

' "The press" means the printing press, not journalists. I am not aware that the drafters of the Const. intended to describe a profession as opposed to a means of communication. '

I'm embarrassed to admit I did not know "the press" did not at that time mean what it means today. But come on. The 1st amendment's provision about "the press" was not simply about a machine. The machine doesn'twork by itself. It's obviously about *publishing*, and *people* publishing printed items, and was largely focused even then on newspapers.

And while I take your word for it, Jefferson's use of "the press" sure seems broader than just the "printing press." And seems to support my side here:

http://famguardian.org/Subjects/Politics/thomasjefferson/jeff1600.htm

LT said...

Oh, damn, had not read the remainder of your comment. The term was used for publishing houses even then, as you said. So Jefferson's use not necessary to note.

Still, journalism, especially journalism that investigates, exposes, criticizes government was an awful huge chunk of what was being addressed by the 1st Amendment, was it not?

Roger said...

I'm absolutely pro-speech, pro-investigation, pro-criticism of government. I just don't think there's a workable distinction between journalism as a profession (paid or unpaid) and speech in general. I'm not a journalist even though I bloviate by blog for public consumption infrequently.

Let's say I never wrote anything in my life for publication, ever, for pay or free, but one day Ed Snowden slips me his data (instead of Greenwald). I sign up for a NySpace account and upload the lot for all to see, without editing or explanation or comment. Why should I be entitled to any more or less protection that the NYT or Greenwald of the Guardian, or why should they be entitled to less or more protection than me? The act is the same, even though I'm not a journalist (or was not a journalist until I hit "publish").

MikeAdamson said...

Nobody bloviates better than you Roger, no matter the frequency, but if you publish the data on MySpace then the kids will laugh.

LT said...

"I'm absolutely pro-speech, pro-investigation, pro-criticism of government."

Of course. Was not beginning to question that.

" I just don't think there's a workable distinction between journalism as a profession (paid or unpaid) and speech in general."

It was my mistake to say ' "journalists" are exactly the *one and only* group of people actually mentioned in the Consttution '. Simply my mistake.

But that doesn't change the very big wrong made by Kinsley when he says " The Constitution is for everyone. There shouldn’t be a special class of people called “journalists” with privileges like publishing secret government documents. "

Let's change it to "publishers." There IS a special class of people, then, even by your definition - **people who publish stuff**. Not everyone does, after all.

And that ignores that clearly the Founding Fathers were, by their own writings on the subject, thinking in a very big way about news media when they wrote about "the press." And as far as a "workable distinction," the whole concept of shield laws, which is born in 1st Amdmt. ,is about that, right?

LT said...

"I'm absolutely pro-speech, pro-investigation, pro-criticism of government."

Of course. Was not beginning to question that.

" I just don't think there's a workable distinction between journalism as a profession (paid or unpaid) and speech in general."

It was my mistake to say ' "journalists" are exactly the *one and only* group of people actually mentioned in the Consttution '. Simply my mistake.

But that doesn't change the very big wrong made by Kinsley when he says " The Constitution is for everyone. There shouldn’t be a special class of people called “journalists” with privileges like publishing secret government documents. "

Let's change it to "publishers." There IS a special class of people, then, even by your definition - **people who publish stuff**. Not everyone does, after all.

And that ignores that clearly the Founding Fathers were, by their own writings on the subject, thinking in a very big way about news media when they wrote about "the press." And as far as a "workable distinction," the whole concept of shield laws, which is born in 1st Amdmt. ,is about that, right?

LT said...

And of course I'm conceptually wrong again, as shield laws, you'll argue, and a recent ruling says - apply to everyone, too:

http://www.usatoday.com/story/tech/2014/01/20/defamation-bloggers-supreme-court/4658295/

Me must do more thinking on this this...

Montag said...

One can make the argument that the act of publishing is journalism--and that any means of publishing is "the press." After all, at the time of the writing of the Constitution, there was only one means of widely disseminating information, that of print. But, even then, the framers did not distinguish between those that printed newspapers and those that printed broadsides in their spare time, or those who wrote books. Had there been a technologically diverse information media in 1787, it likely would have been included.

The import of the specific inclusion of the press in the First Amendment is to ensure that the government cannot use the information media to control the flow of information. That would presumably also include the agents of the publishing process, i.e., journalists.

We had a very early attempt to subvert this part of the First Amendment, namely, the Sedition Act, passed in, what, 1797?, so it's not as if the framers were wrong to anticipate the urges of government to shut people up. In fact, the government jailed journalists--agents of newspapers--for violations of The Sedition Act (designed to protect the Federalists when they were in power), which was not repealed until the Federalists were out of power.

Today, we still have the Espionage Act, under which, for example, Eugene V. Debs was convicted on charges of sedition, for his published speeches against the war and the draft, and under which numerous whistleblowers--and, potentially, their journalistic agents--are being prosecuted today, even though Congressional debate (part of the judicial history necessary in deciding such cases) indicates that the Congress of the time of passage did not intend for journalists or newspapers to be included as the law's targets.

Ultimately, I think, the act of publishing makes one a journalist, if the object of doing so is presentation of fact, rather than defamation or libel (which civil law covers). Inferior journalists, such as Kinsley, publish to protect the government's excesses. Good ones publish to protect the public's right to know. Crazy ones, such as Alex Jones, do so for self-aggrandizement. The important distinction to be made is that it's up to the public--and not the government--to evaluate the merits of the information provided by the act of publishing.

LT said...

Montag, what exactly do you mean it "likely would have been included"? A free *press* distinction between professioal journalists and non-pro?

I'm confused, I guess, on what is covered under free *speech* and free *press*. Thinking more on it since my first comment and Roger's replies, I guess if pressed I would have thought books would have been covered by free *speech* provision of F.A., and more journalistic things by free *press*.

But the fact is, I just hadn't thought about that enough before now.

LT said...

I need to add that I would have thought there was a lot of overlap between free speech and press. Is it actually *complete* overlap? Is free press *within* the more encompassing free speech?

Montag said...

Umm, yes, LT, that's what I mean. The framers did not make a distinction between professionals, semi-pros or citizen journalists.

And, yes, I think journalism is acknowledged as a specifically-recognized subset of free speech guarantees by its inclusion in the First Amendment, and it's not recognized in parenthetical fashion--it's clearly delineated as a right of the people, not of particular institutions (which would have opened the legal door to the government regulating which institutions were acceptable purveyors of information). The body of the Constitution is largely devoted to what the government can do. The amendments are largely concerned with what the government may not do with regard to the public or to individual citizens.

As for books, I think trying to create a distinction as to which part of the First Amendment they apply is a distinction without difference. They are published, but they may contain both fact and opinion, they may be entirely of opinion--as is a hefty part of what is conceived to be "journalism" today. I make the distinction about facts and journalism in the context of what Kinsley is arguing. Kinsley seems to think the government is the best arbiter of what the public can and cannot know about what the government is doing. He wants us to believe that there are "acceptable" institutions with "acceptable" journalist employees, and this the First Amendment does not say. His thinking does not have its roots in the First Amendment, but, rather, in the national security state, as codified in the 1947 National Security Act and in the immensely flawed and politically-motivated 1917 Espionage Act (and, perhaps, in some seriously skewed judicial opinions, such as U.S. v. Reynolds in 1953, in which the government lied outright to the Supreme Court and disguised negligence as a matter of state security, which generated the opinion that the government has inalienable state secrets privilege).

In a perfect world, any government dependent upon citizens for its legitimacy would not lie to its citizens. However, it's far from a perfect world, which is why there was and is a need for a First Amendment in the first place, and is why there should be an expansive view of what constitutes journalism, with perhaps only the civil actions
against defamation or libel as constraints on its practice--either by institutional or individual actors.

Roger said...

It's gotta be MySpace, unless LiveJournal is still around. I'm also going into broadcaset journalism, via Chatroulette.

Thanks LT and Montag, for your valuable insights!

LT said...

Valuable means my 2c and Montags $9.98, pretty sure...

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