The First Amendment, the “freedom of speech” one, does not mention journalists. When it says “freedom of the press” it means the physical printing press. Yes, that does include newspapers, but it also includes anybody else publishing things, such as the famous agitprop pamphlets published by James Otis, John Dickinson, and Thomas Paine. There was no journalistic value to Thomas Paine’s Common Sense. The pamphlet argued for abolishing the monarchy and for American independence.
Today in testimony before congress, FBI directory James Comey came out in support of journalism, pointing out that they would not prosecute journalists doing their jobs. But he then modified his statement, describing “valid” journalists as those who in possession of leaks would first check with the government, to avoid publishing anything that would damage national security. It’s a power the government has abused in the past to delay or censor leaks. It’s specifically why Edward Snowden contacted Glenn Greenwald and Laura Poitras — he wanted journalists who would not kowtow the government on publishing the leaks.
Comey’s testimony today was in regards to prosecuting Assange and Wikileaks. Under the FBI’s official “journalist” classification scheme, Wikileaks are not real journalists, but instead publish “intelligence porn” and are hostile to America’s interests.
To be fair, there may be good reasons to prosecute Assange. Publishing leaks is one thing, but the suspicion with Wikileaks is that they do more, that they actively help getting the leaks in the first place. The original leaks that started Wikileaks may have come from hacks by Assange himself. Assange may have helped Manning grab the diplomatic cables. Wikileaks may have been involved in hacking the DNC and Podesta emails, more than simply receiving and publishing the information.
If that’s the case, then the US government would have good reason to prosecute Wikileaks.
But that’s not what Comey said today. Instead, Comey referred only to Wikileaks constitutionally protected publishing activities, and how since they didn’t fit his definition of “journalism”, they were open to prosecution. This is fundamentally wrong, and a violation of the both the spirit and the letter of the First Amendment. The FBI should not have a definition of “journalism” it thinks is valid. Yes, Assange is an anti-American douchebag. Being an apologist for Putin’s Russia disproves his claim of being a neutral journalist targeting the corrupt and powerful. But these activities are specifically protected by the Constitution.
If this were 1776, Comey would of course be going after Thomas Paine, for publishing “revolution porn”, and not being a real journalist.
This is a Security Bloggers Network syndicated blog post authored by Robert Graham. Read the original post at: Errata Security