Tag Archives: freedom of the press

Assange And The First Amendment: It’s Complicated

Let’s quickly review the relevant rules.

As most Americans know, the First Amendment protects free speech and freedom of the press. That freedom is not absolute: you cannot falsely cry fire in a crowded theater, nor blithely libel someone you don’t like, nor spill trade secrets in contravention of an agreement not to do so. Members of the press who report damaging, untrue information about public figures with “willful disregard” for its accuracy can be held accountable.

In most cases, the persons harmed by such improper behaviors can sue only after the fact. Our legal system has a strong bias against prior restraint–against enjoining publication in the first place. (That bias goes back to the era when England required publishers to obtain government permission before printing anything.) But even that strong presumption against prior restraint can be overcome in extraordinary circumstances–someone proposing to identify American spies abroad, or to disclose upcoming troop movements in wartime could certainly be kept from doing so.

It is probably impossible to overstate the importance of journalism to democracy–as one masthead puts it, democracy dies in darkness. Autocrats routinely take control of the media. That’s why Trump’s constant attacks on the press are so worrisome–and so unAmerican. Those attacks are probably one reason that the arrest of Julian Assange has raised such an outcry.

How does this apply to what we know thus far about Wikileaks and Julian Assange?

Assange’s Wikileaks published illegally procured classified information. Under First Amendment law as I understand it, his publication of that information is protected.

Engaging in criminal activity to acquire the information, however, is not. And that is what the government–so far–is alleging.

Typically, a whistleblower or other source of illegally obtained material is the one breaking the law; a journalist is not a lawbreaker simply because he or she received it. Here, it is alleged that Assange materially assisted Chelsea Manning in the hacking through which they acquired the information. If the government has persuasive evidence that Assange played an active role in the hacking, his conviction for that behavior would not implicate press freedom.

If there is no probative evidence that Assange broke the law in obtaining the information, or if the government expands its charges to include publication, analysis of the situation changes.  Journalists who have expressed First Amendment concerns are also worried about a “slippery slope”–especially since Assange is such an easily detested and unsympathetic figure, his case could conceivably set an unfortunate precedent. So long as the government prosecutes him only for illegal hacking, however, I think the First Amendment is safe.

This episode comes at a time when the First Amendment is under pressure from the craziness on the Internet, from conspiracy theories promulgated by provocateurs like Alex Jones, and from propaganda mills like Fox News. It’s really tempting to argue that some speech, some “news,” falls within the category of falsely shouting fire in a crowded theater. Efforts to ensure that news sources are truthful and fair, however, present us with the same dilemma that faced the nation’s Founders: who gets to decide?

Is freedom of expression dangerous? Yes. The First Amendment enables hate radio, protects propaganda and the spread of deliberate misinformation, and makes it difficult for even conscientious citizens to separate truth from fiction. But the Founders concluded that the alternative– giving government the authority to decide what information we see– would be even more dangerous.

Unless some genius can devise a way to keep information honest without empowering government censorship, slimy characters like Julian Assange will cynically market their activities as First Amendment expression. Chalk it up to the cost of protecting liberty.

 

 

Shooting The Messenger

A recent report from the Brookings Institution began rather predictably:

A leader who portrays himself as one of the persecuted, the target of an incessant witch-hunt by the so-called deep state. A liberal media intent on revisiting an election gone badly. And a left-wing political machine supposedly out to get him.

The surprise came in the next sentence. “This leader, of course, is Benjamin Netanyahu, Prime Minister of Israel.” The article was an investigation into what the author called “the politics of grievance” employed by both Netanyahu and Trump.

According to the article, at a recent rally in Israel,

Netanyahu seemed to channel Donald Trump. He even explicitly (mis)used the English phrase “fake news” to attack the supposedly biased mainstream media that’s out to get him. While Netanyahu and Trump are profoundly different—Bibi’s many faults aside, he is erudite, cautious, and experienced—the two men share an approach to confronting political adversity: divide and conquer, turn the spotlight on the “other,” create an other when none is available, and always, always, feed the base.

The parallels between these two flawed leaders include explicit attacks on so-called “elites,” including –prominently, especially–the press. And that assault is no small matter, because in democratic societies, the press is an essential watchdog, the only institution that mediates between the governed and their government. Imperfect, uneven and beleaguered as it is, the media is our only window into the world of politics and policy.

Autocrats want to break that window.

On “Meet the Press,” John McCain recently underlined the danger of attacks on the press.

“I hate the press. I hate you especially,” McCain told NBC’s Chuck Todd, according to excerpts of the interview set to air Sunday. “But the fact is we need you. We need a free press. We must have it. It’s vital. If you want to preserve – I’m very serious now – if you want to preserve democracy as we know it, you have to have a free and many times adversarial press. And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.”

McCain’s comments came in response to a question about Trump’s recent declaration, made via Twitter, that the press is the “enemy of the American People.”

A recent article in Newsweek considered the nature of Trump’s persistent assaults on the press, and considered the potential consequences:

The President’s attacks may be reckless – who knows whether someone in his audience will take the President’s word as license to take action against enemies of the American people ? – but they are not without purpose.

They have concrete aims: to intimidate reporters into certain kinds of coverage, or clarify for his favored outlets what coverage he desires, or plant the seeds of doubt about news stories (such as the Russia investigation led by Robert Mueller).

The article goes on to detail the ways in which Trump’s hostility to investigative journalism is driving policy–efforts to shut down whistleblowers and others who might provide the press with information about government wrongdoing, and attacks on net neutrality:

For instance, the FCC’s proposal to undo network neutrality rules – those rules that implement a policy disfavoring content-discrimination by digital network operators – threatens the long-term viability of independent media, and does most damage to reporters and outlets that lack the audience and resources of existing media powerhouses.

These attacks on the media are reinforced by the proliferating propaganda sites on line, and by the ability to choose the “news” that reinforces one’s preferred worldview. Educators desperately need to teach news literacy, the ability to distinguish between responsible journalism and irresponsible click-bait.

In our political environment characterized by civic ignorance, hyper-partisanship and confirmation bias, how effective are the efforts by would-be autocrats and political partisans to undermine genuine journalism? How effective is persistent propaganda?

Unfortunately, as Vox tells us, a lot more effective than we like to think.

What We Learn When Journalists Do Their Jobs

In my recent blog about the termination of the PR contract intended to repair the considerable damage to Indiana’s reputation inflicted by the RFRA debacle, I questioned Governor Pence’s assertion that Indiana was creating lots of jobs so the contract was no longer necessary.

I also noted that there has been considerable criticism of the way in which the state’s economic development agency reports job creation numbers. (In all fairness to Governor Pence, those concerns precede the current administration.)

I knew there had been allegations that the Indiana Economic Development Corporation routinely  and intentionally “cooked the books,” but I was unaware of the considerable evidence supporting those allegations until a regular reader sent me a link to a story done last year by WTHR.

The extensive report is pretty devastating. Among WTHR’s findings:

  • IEDC’s new transparency website is missing basic disclosure information that other states release to taxpayers.
  • The state agency is not releasing any information about hundreds of projects it previously announced.
  • IEDC is reporting official job statistics that exclude all failed economic development projects from its calculations.
  • Both IEDC and the governor are citing the state’s new job transparency law as justification to withhold information from public disclosure.

I encourage readers to click through and read the entire report. It documents misdirection and “gaming the system” by the Administration in great detail–and it should make taxpayers pretty angry.

It certainly made me angry, for two reasons: first, because our elected officials are playing fast and loose with the truth; and second, because this sort of investigative reporting about local government is all too rare.

The whole purpose of freedom of the press was to provide this sort of “watchdog” function–to allow the press to act on behalf of citizens who lack the time and expertise to keep tabs on those we’ve charged with managing our governing institutions. Kudos to WTHR–but where is the rest of the local media?

We get lots of coverage –indeed, I’d suggest overkill–of things like the Richmond Hill trial, the (thus far speculative) investigation of Subway spokesman Jared Fogle, and the most recent bar openings, but little or no oversight of the state and municipal government agencies that spend our tax dollars and regulate our behaviors. Figuring out what’s going on is admittedly more work than telling us about the opening of the latest restaurant–but it’s also a whole lot more important.

When I see a well-researched story like this one, it reminds me why journalism is so important–and makes me sad that we have so little of it.