Why “Members of the News Media” Should Welcome a Shield for the Act of Journalism

As I noted in this piece, the new policies DOJ rolled out in the wake of the AP and James Rosen revelations applies explicitly to “members of the news media,” not journalists per se. The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks.

I’ve been asked what I think a better solution is. My answer is to define — and then protect — the act of journalism, not the news media per se.

That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially — though this would be a contentious though much needed debate — publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.

But protecting the act of journalism rather than “news media” would also serve to exclude another group that should have limited protection. Included within DOJ’s definition of those it is protecting here are not just the reporters who work for the news media, but also the managers.

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

While I absolutely agree that, say, AP’s editors should have had their phone records protected as they contemplated withholding the UndieBomb 2.0 story after the White House request (those records were included in the subpoena) — that is, as they engaged in a journalistic role. That would protect any discussions they had with sources or other experts to challenge the government’s claim about damage, for example. But the communications of a Tim Russert being pressured after the fact about a critical story by the Vice President’s Chief of Staff should not be protected. Nor should WaPo CEO Katharine Weymouth’s discussions with huge donors like Pete Peterson or potential salon sponsors. While I suspect DOJ sees real benefit in protecting these cocktail weenie means of pressure on news media (as do, undoubtedly, some of the executives involved), I see no journalistic reason to do so.

Moreover, in an era where WaPo is really a testing firm with a journalistic rump and NBC is really the TV content wing of a cable supplier, should we really be protecting the “news media” with no limits? (Bloomberg, I think, presents the most fascinating question here, particularly given their recent spying on users of Bloomberg terminals; where does the journalistic protection for companies that primarily provide privatized information begin and end?)

But even within the scope of Friday’s guidelines, there’s a reason the members of the news media should favor protecting the act of journalism rather than membership in news media.

That’s because two of the most important passages in the new News Media Policies refer to newsgathering activities as a further modification to its otherwise consistent discussion of members of the news media. The phrase appears in what amounts to a mission statement describing why this issue is important.

As an initial matter, it bears emphasis that it has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

This is a weird passage, in that it both admits the “newsgathering process” is constitutionally protected, presumably for all, but then suggests the protections within this policy will only apply to members of the news media (one limitation) who cannot be prosecuted exclusively for their newsgathering activities (a second limitation).

Note the parallel limitation in a number of DOJ’s surveillance and investigative guidelines — which say people cannot be investigated solely for their First Amendment protected activities — has not provided adequate protection to Muslims engaging in speech and religion.

The policies again invoke “newsgathering activities” in the passage describing the news media protections in DOJ’s treatment of the Privacy Protection Act.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

By limiting protections offered to members of the news media to “ordinary newsgathering activities,” DOJ has just punted one of the crucial issues underlying the James Rosen affidavit (and, along with it, DOJ’s efforts to prosecute WikiLeaks). Because it still permits DOJ to decide, potentially in secret (though, as a laudable part of the new policy, with the input of the Public Affairs Director and the Privacy and Civil Liberties Officer), what constitutes “ordinary newsgathering activities.” And some of the things the FBI officer apparently decided  in that case did not constitute ordinary newsgathering activities, but instead provided evidence that Rosen was part of a conspiracy to commit espionage, include:

  • Soliciting disclosure of intelligence information, including documents, on North Korea
  • Using (in the FBI officer’s description) “covert email communications as a means of compartmentalizing the information” — this includes use of a pseudonym and a code for facilitating non-email communication
  • Exploiting a source “like a rag doll” and the source’s vanity (according to defendant Stephen Jin-Woo Kim’s descriptions); employing flattery (according to the FBI officer’s description)
  • Providing other news articles in advance of their publication to a source not used on that story

While there are other protections for news media in these new policies (including protections from non-NSL Administrative orders, review before using such investigative methods, reporting on how much investigation of news media occurs, and what amount to increased minimization procedures for news media contact information), this is one of the critical new protections in this policy.

If DOJ decides that protecting sources and methods, soliciting information, and sucking up to sources do not constitute “ordinary newsgathering activities,” then how useful are the protections?

DOJ has announced its intention to respect ordinary newsgathering activities and even recognized constitutional protections for them, sort of (I look forward to the legal cases that cite that language, anyway). But until there’s a common understanding about when such activities constitute journalism and when they constitute spying, the protection has limited value.

If the ultimate idea is to protect newsgathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?

19 replies
  1. Scott Lazarowitz says:

    “Congress shall make no law … abridging the freedom of speech, or of the press”

    I don’t think the people who wrote the First Amendment wanted any government agency to define “Press.” Back then, anyone who wrote about current events, the news, or even “gossip,” or who stood on street corners distributing pamphlets, were protected.

    “The Press” consists of anyone who wants to consider oneself a part of it. It is not an official group, officially recognized by the government. Those who want to consider themselves a member of “The Press” shouldn’t have to have a BA in “journalism,” or sign any forms, pay any financial union dues, belong to a guild, or whatever.

    If citizen Mary gets access in some way to documents which are incriminating to government flunkies in Washington, let her release the documents to the public and let the chips fall where they may. She is fully protected by the First Amendment.

    Nobody should be “excluded” by law in one’s exercising the freedom of the Press, including asking public officials questions, reporting on their answers, or doing one’s own research on an important issue (that is being ignored by the “mainstream” media, i.e. the corporate government-stenographers) and publicizing their findings.

    And let the people themselves decide whose news gathering and information disseminating is legitimate or accurate, NOT the government.

  2. scribe says:

    Government does not have the right, and should not have the power to attempt, to define news media, journalism, or any of the other categories involved in this atrocity you’re writing about.

    Frankly, EW, this is one where you’re not seeing the forest for the trees.

    The gist of what’s going on here is that the government is trying mightily to change the discussion away from a patently unconstitutional statute – the Espionage Act of 1917 – and salvage both that statute and an indirect power (which you admit exists) to censor what gets written and said. It is entitled to neither and we should not pretend it is, nor that its efforts to preserve them are legitimate.

    In short, if something the government thinks should be secret gets out – too f’g bad. That’s the press – Establishment or otherwise – doing its job. They should have been more careful about the protections they built around it or (more likely – the stuff they go most ape over are usually the most embarrassing, illegal, immoral things) shouldn’t have been doing it in the first place.

  3. peasantparty says:

    The DOJ does not have the authority to do this on their own accord.

    Either the White House tells America they have done away with the Constitution and all hell breaks loose, or they try to appear to uphold it.

    The DOJ is not our Government and cannot make law on it’s own. There is no populace Consent for these actions. That is if the populace continues to play dead, there will be no law left for the little people.
    Only laws to protect the elites will be enforced.

  4. NattyB says:

    You’ve got to admire the Administration’s “divide-and-conquer” approach to buying the Villagers’ consent. No one said they weren’t savvy.

  5. scribe says:

    Also, remember Greenwald’s deal with The Guardian has him not under much, if any, editorial control.

    These “guidelines” kinda put him – who’s done some of the best journalism this decade – outside the walls, doesn’t it. All by accident, I’m sure.

  6. scribe says:

    Also, remember that Greenwald’s deal with The Guardian has him under little, if any, editorial control. So, the guy who’s done some of the best journalism of the past decade winds up outside the walls and fair game for the cops. All quite by accident, I’m sure.

  7. emptywheel says:

    @scribe: Right. But right now what is protected is stuff that gets to certain people. The news media would not tolerate any restrictive limits on journalism. And with their drop box efforts they can’t even define away WIkiLeaks. But their efforts to distinguish a Judy Miller from a journalist based on the journalism done rather than the lazy editor she worked for would fail to exclude people actually doing journalism.

  8. Clark Hilldale says:

    Scott Lazarowitz @1 and scribe @2 have it exactly right.

    Any bullshit about defining what is not to be considered journalism or “ordinary newsgathering activities” plays directly into the game that USG is playing right now.

  9. scribe says:

    @emptywheel: I am a strong believer in the power of speech to counter false speech, the kind Judy trafficked in. For those who pay attention, her rep is pretty much shit and that’s due, in large part, to good journalism pointing out the bad.

    I don’t trust the government to do that, nor should they be doing that. The government’s relationship to the press is always adversarial, even when it looks like it might not be. They should get no say in the workings of journalism – they want to straighten out a story, then release the truth and let the journos probe, poke and write.

  10. emptywheel says:

    @scribe: Sure. But as of right now, there is no federal press protection. What Congress is prepping to do will make all this worse. The only protection journalists get, especially if DOJ doens’t give notice, is in what DOJ willingly does.

    Within that context, is it better for DOJ to define journalist based on the action or on what institution pays that journalist?

  11. Jay says:

    Since bloggers are excluded, it sort of invites an annual anthology magazine. A title I’d suggest:


    with contributions by Marcy Wheeler, et al.

  12. jerryy says:

    @emptywheel: “Within that context, is it better for DOJ to define journalist based on the action or on what institution pays that journalist?”

    Neither of the two. Two valued logic is fine for computers, but life seldom is an either / or choice. Allowing the DOJ to turn it into one alliows them to further restrict you when they are ready to choose how to box you in.

    This particular road to hell is seeking to undo:

    I really think Justice Black’s concurring opinion about the role of government’s involvemnt in definiing journalism is even more valid today than then (when journalists had even less protection).

  13. rsmatesic says:

    I note that DOJ has omitted from its rationale any mention of Pickering v. Board of Education, 391 U.S. 563 (1968). In that 8-1 decision, authored by Thurgood Marshall, the Supreme Court stated that 1st Amendment protections are triggered when a person speaks on a matter of public concern. Admittedly, the Pickering standard arose in the context of public employment and was intended to protect persons (from retaliation by their employers) under the free speech clause, rather than freedom of the press, but why should that make any difference? While I have no doubt that Samuel Alito could claim to have found one, I can’t conceive of a principled argument for why freedom of the press protections should be seen as distinct from those governing freedom of speech, because the purpose in both is to ensure that the government doesn’t interfere with the process of bringing to light matters of public importance. By contrast, the focus on who’s a legitimate journalist, whether in the eyes of the law, the DOJ, or the administration, demonstrates disregard, if not outright contempt, for this fundamental interest.

  14. JohnT says:

    @Scott Lazarowitz:

    I don’t think the people who wrote the First Amendment wanted any government agency to define “Press.”… Back then, anyone who wrote about current events, the news, or even “gossip,” or who stood on street corners distributing pamphlets, were protected.

    “The Press” consists of anyone who wants to consider oneself a part of it. It is not an official group, officially recognized by the government. Those who want to consider themselves a member of “The Press” shouldn’t have to have a BA in “journalism,” or sign any forms, pay any financial union dues, belong to a guild, or whatever


    James Madison John Adams wrote many of the Federalist Papers

    (My mistake, should have said Adams)

  15. C says:

    Moreover, in an era where WaPo is really a testing firm with a journalistic rump …

    Don’t forget the other business they are, or tried to get in, selling access to powerful officials:



    While these particular events were cancelled it is clear that WaPo sees their “access” as a revenue stream. This revenue was threatened by their own news coverage hence the awful editorial.

    These days I think that WaPo and probably the NYTimes are really coctail party organizers with a publishing division.

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