No, the government doesn’t decide what ‘legitimate press functions’ are First Amendment worthy

A shot from the 2010 Wikileaks “Collateral Murder” video showing leaked footage of an Army helicopter gunner opening fire on a good Samaritan who had stopped to help innocent victims of an Army massacre in Baghdad in 2007. A Reuters photographer was killed in the first assault. Two children inside the van were badly injured; their father was killed.

Originally published at Just Security

Former Obama administration lawyers Bob Bauer and Ryan Goodman make a dangerous argument in their November 2 essay on Just Security: that coordination with a political campaign is outside the “legitimate press function” and therefore not protected by the First Amendment.

On its face, that would – for better or worse – deny constitutional protection to significant chunks of the political media on the left and right, where journalists (increasingly) take their cues – if not their instructions – directly from their partisan sources.

I’m not saying that seeking and taking guidance from partisan hacks is a good thing for journalists. (As I’ve argued before, political journalism is ideally anti-partisan, not partisan or even bipartisan.) But if it’s not protected by the First Amendment, that’s a Trumpian fantasy come true.

See, i.e., from Glenn Greenwald:

I would add that it’s not even arguable that websites like Breitbart and the Daily Caller collaborate closely with Republican Party leaders.

Bauer and Goodman were writing in the context of the civil suit brought in April by people associated with the Democratic National Committee regarding the hacking and dissemination of DNC emails in 2016. The defendants include elements of the Trump campaign, the Russian government – and WikiLeaks.

Although most of their essay is an argument that the Trump campaign isn’t protected by the First Amendment, they also address what they call the “misplaced concern that a defeat for this First Amendment defense puts media protections at risk.” Their position is that the First Amendment doesn’t protect media organizations if their conduct is outside the “legitimate press function” – as determined by the U.S. government.

They cite federal campaign regulation as a model:

It exempts standard journalistic activity, but denies those protections to conduct outside the “legitimate press function.” It is clear from disclosures by an internal WikiLeaks critic that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of WikiLeaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press. (Internal hyperlinks omitted).

Even if First Amendment protections can, in certain cases, not apply in election law, that doesn’t mean it’s something worth emulating. But in any case, the election regulations that determine what’s “legitimate” would easily validate  WikiLeaks.

A 2011 Federal Election Commission advisory (in the matter of Stephen Colbert and the Colbert Report) laid out how determinations are made:

In determining whether the press exemption applies to an entity, the Commission has conducted a two-step analysis. First, the Commission asks whether the entity engaging in the activity is a press entity. See, e.g.AOs 2005-16 (Fired Up) and 1996-16 (Bloomberg). Second, the Commission applies the two-part analysis in Readers’ Digest Ass’n v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y., 1981), which requires it to determine: 1) Whether the entity is owned or controlled by a political party, political committee or candidate, and 2) whether the entity is acting as a press entity in conducting the activity at issue (i.e., whether the press entity is acting in its “legitimate press function”).

To determine whether a press entity is acting in its legitimate press function, the Commission considers two factors: 1) whether the press entity’s materials are available to the general public, and 2) whether the materials are comparable in form to those ordinarily issued by the press entity. See AOs 2005-16 (Fired UP) and 2000-13 (OPHTHPAC).

In the matter of WikiLeaks: check, check, check.

I hate seeing Goodman and Bauer argue for strict government-determined delimitations on the First Amendment.

I am sympathetic to their First Amendment arguments relating to the Trump campaign and the Russians, because if there was actual collusion to commit a crime, then legal sanctions would certainly appear to be justified. But by lumping Wikileaks in with the others – especially when the DNC lawsuit does not even vaguely allege that Wikileaks or its founder Julian Assange helped plan the hack in the first place – they do harm to the free press

Last month, also in Just Security, First Amendment lawyer Floyd Abrams posited this hypothetical:

Suppose, though, that the reality was that WikiLeaks itself had discussed with Russian authorities before the hacking how they would disseminate the information obtained so as best to embarrass the Clinton campaign. It is not a bizarre bit of conjecture. In that circumstance, there would be no First Amendment protection for WikiLeaks, just as there would be none if the campaign had done so.

I found that somewhat glib. But it’s also a different argument than the one Bauer and Goodman make. We journalists know that if we pro-actively suborn an illegal act, all bets are off.

I much preferred the May 2017 essay (also on Just Security!) by Elizabeth Goitein, who co-directs the Brennan Center for Justice’s Liberty and National Security Program. She wrote, in the context of then-FBI Director James Comey’s indication that criminal charges were pending against Assange:

He explained his reasoning as follows: Publishing classified information “crosses a line when it moves from being about trying to educate a public and instead becomes just about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting.” That, to Comey, describes WikiLeaks’ behavior: “[I]n my view, a huge portion of WikiLeak’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important controversies, but is simply about releasing classified information to damage the United States of America.”

In other words, the line Comey seeks to draw is not between leaking classified information and publishing it, but between publishing it for “good” reasons and publishing it for “bad” ones. Those who do the former are “journalists,” while those do the latter are not. And presumably, the Department of Justice gets to say which is which—at least when it comes to bringing a prosecution.

Goitein didn’t think much of that:

How will the government decide which outlets have an acceptable motivation? Comey didn’t go into detail, but he pointed to one indicator: “American journalists . . . will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or—or innocent civilians anywhere in the world. And then they work with us to try and accomplish their important First Amendment goals while safeguarding those interests.”

In other words, media outlets that work in partnership with the U.S. government and are willing to self-censor based on official claims of national security are journalists. Those who conceive their role differently are not.

Former Obama White House associate counsel Andy Wright (also in Just Security!) warned this past May that: “First Amendment precedent, applied here to a platform like WikiLeaks could later serve as the basis of opinions affecting the Washington PostWall Street Journal, or the New York Times.” Wright noted that if WikiLeaks can be proven to have “advance knowledge coupled with a commitment that incentivizes the criminal acts,” then the case moves “closer to the line between the First Amendment and criminality.”

But, he wrote:

Mostly, the DNC complaint repeats the allegation that WikiLeaks published material it knew had been stolen in order to maximize political damage to Clinton. The DNC describes WikiLeaks as the publisher of “leaked or stolen confidential and classified information,” and Assange as a person who “has exhibited support for the Russian government and has hosted a talk show on Russia Today (“RT”), a television propaganda outlet funded by the Russian government.” In the “Nature of the Action” section of the suit, the DNC alleges that Russian operatives “transmitted [stolen] data to Defendant WikiLeaks, whose founder, Assange, shared the defendants’ common goal of damaging the Democratic party in advance of the election.”

What is missing is a direct allegation that Assange or WikiLeaks had knowledge of the plan to steal DNC information ahead of time, or that they knowingly incentivized the criminal behavior.

So count me as firmly with my former Intercept colleague Glenn Greenwald and Trevor Timm, the director of Freedom of the Press Foundation, when they wrote, within hours of the filing of the DNC lawsuit:

The DNC’s suit, as it pertains to WikiLeaks, poses a grave threat to press freedom. The theory of the suit — that WikiLeaks is liable for damages it caused when it “willfully and intentionally disclosed” the DNC’s communications (paragraph 183) — would mean that any media outlet that publishes misappropriated documents or emails (exactly what media outlets quite often do) could be sued by the entity or person about which they are reporting, or even theoretically prosecuted for it, or that any media outlet releasing an internal campaign memo is guilty of “economic espionage” (paragraph 170).

Look, Assange is not my kind of journalist. Although I’m proud to say that I was the first journalist to write about the extraordinary “collateral murder” video WikiLeaks released in April 2010 — and I’ve published many articles since then based on records WikiLeaks uncovered — I think much of what Assange has done lately is despicable. Although when I was Washington Editor of the Intercept, we mined the hacked DNC emails for legitimate news stories, I abhorred the heedless, unedited publication of the non-newsworthy and personally hurtful ones.

But Assange remains a journalist. (He even won the 2011 Martha Gellhorn prize for journalism.)

In the Trump era, when the president of the United States is using his office to attack journalists and journalism itself, the First Amendment is a key bulwark of liberty.

Here’s what Steve Vladeck, the co-editor-in-chief of Just Security and a law professor at the University of Texas School of Law, wrote to Goodman in a Q&A on the site (of course) in 2017, in the context of potential Espionage Act charges against journalists – criminal charges related to the simple possession of classified information: “I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).”

Vladeck continued:

I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill). Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law. And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

And with a Supreme Court increasingly stacked with far-right judges who read the Bill of Rights very narrowly, now is not the time to test its protections.

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