Pro-democracy protests, like one in Hong Kong this fall, highlight tensions surrounding the right to free expression

Pro-democracy protests, like one in Hong Kong this fall, highlight tensions surrounding the right to free expression

At a March 2013 meeting in Doha, Qatar, in which press freedom activists gathered to develop a strategy for responding to the violence in Syria, a heated discussion broke out about what constitutes journalism in an environment in which professional reporters work alongside a new generation of online communicators who dub themselves “media activists.” Using social media and public platforms like YouTube, these activists have provided firsthand accounts of the fighting, the toll, and daily life in a war-ravaged country but make no claim to objectivity. Some are fairly journalistic in their approach and others essentially propagandists for the rebel forces. A few are armed and participate in combat.

"The New Censorship: Inside the Global Battle for Media Freedom"
Reprinted from “The New Censorship: Inside the Global Battle for Media Freedom” by Joel Simon Copyright 2015 by Joel Simon/Published by Columbia University Press

To give a few additional examples from other parts of the world, in China, a leading blogger, Zhou Shuguang, who uses the online moniker Zola (a nod to the French writer-journalist), has traveled around the country with a video camera documenting injustice but insists, “I don’t know what journalism is. I just record what I witness.” In Vietnam, a blogger named Nguyen Van Hai who took a similar approach was given a 12-year jail sentence. In Turkey, while mainstream media ignored the Gezi Park protesters, activists using Twitter and other social media became the essential source of independent news. Even New York police seeking to control access to the Occupy Wall Street protests struggled to differentiate between accredited journalists and sympathetic citizens who used smartphones to disseminate information to the public.

In an era in which technology has changed everything about the way news is gathered and delivered, is it possible to draw a line between journalism, activism, and other kinds of speech? And is it necessary to do so? The answer is extremely significant for several reasons. First, because it directly affects the way journalists themselves understand their role. Are the rights of journalists distinct from others who provide information and commentary? Is the ability of journalists to perform their role as media professionals dependent on preserving some sort of distinction? Second, because it goes to larger questions about the kind of global information environment that would best preserve and even expand the accountability, oversight, and transparency that have historically been the function of independent media.

The advent of blogs and online media raised new questions. As the volume, complexity, and speed of information increased, the process of defining journalism has become more and more unwieldy. The trend has accelerated in the last several years, with the explosion of social media and its increasing use to accomplish basic journalism: documenting events and disseminating information to the public.

Some traditional journalists are deeply uncomfortable with the blurring of lines, which they feel undermines the integrity of the profession while also making coverage of conflict more dangerous. NBC’s chief foreign correspondent Richard Engel told the U.N. Security Council during its July 2013 briefing on journalist security, “Protecting journalists these days is hard, perhaps harder than ever, because one has to tackle the question of who is a journalist and who is an activist in a way that never existed before.”

Engel lamented the ways in which the advent of social media has eviscerated the special status that international correspondents once enjoyed, eliminating distinctions between professional journalists, activists, and “rebels with cameras” and “state broadcasters” who are “fundamentally different from journalists.” “If one cannot or will not write an article that goes against one’s cause, then one is not a journalist and does not deserve to be treated like one,” Engel explained. He proposed that the diplomats on the Security Council make a distinction between the broad defense of freedom of expression and the defense of “dedicated and trained professionals who take risks to deliver the kind of information council members need to make their decisions.”

Many governments, including China and Egypt, seem to believe “journalists” support government policies while “activists” oppose them

But inviting governments to differentiate journalists from non-journalists would set a dangerous precedent. Many governments—Turkey, Egypt, China, and Venezuela, to cite some examples—seem to believe “journalists” support government policies while “activists” oppose them. Journalists and media freedom organizations have long resisted any effort by governments or government-controlled bodies like the United Nations to define who is and who is not a journalist, arguing that such a distinction is tantamount to licensing, which is anathema to the journalism profession.

Indeed, journalists themselves are divided on the issue, with opinion writers tending to take a more expansive view. The New York Times’s Nick Kristof argues that a press freedom group needs to be “as broad as possible when thinking about its mission and role. It would be pusillanimous if they helped only full-time journalists and let everyone else take the heat,” he argued. “You need to speak up for everyone like that even if you don’t call them journalists.”

In the last three decades, the way in which journalists define their role has evolved considerably. Defending the human rights of persecuted colleagues, once viewed as activist special pleading, is now widely accepted. But today, precisely because the distinction between journalists and nonjournalists has broken down so dramatically, journalists are confronting a new dilemma: Should journalists more broadly embrace the freedom-of-expression cause? Or should they speak out—as Engel suggests—only in defense of their professional colleagues?

This debate played out in dramatic fashion beginning in April 2010, when WikiLeaks released a video provocatively labeled “Collateral Murder.” The video showed the crew of a U.S. helicopter gunship in Iraq opening fire on a group of Iraqi men who had been identified as insurgents, some of them armed. A journalist and media assistant from Reuters who were with the group were killed. A van that tried to rescue the wounded media worker also came under fire. Two children in the van were wounded, and their father, the driver, was killed.

Regardless of whether WikiLeaks co-founder Julian Assange is considered a journalist, he is part of the new global information ecosystem

Regardless of whether WikiLeaks co-founder Julian Assange is considered a journalist, he is part of the new global information ecosystem

WikiLeaks was co-founded by Julian Assange in 2006, with the goal of making public documents of “political, ethical, diplomatic, or historical significance,” a description that of course covers just about everything. But it wasn’t until the “Collateral Murder” video that WikiLeaks garnered widespread public attention. The video—which Reuters had tried to obtain unsuccessfully from the Pentagon under the Freedom of Information Act—was provided to WikiLeaks by a disgruntled low-level military intelligence analyst named Bradley Manning. Manning also shared with WikiLeaks hundreds of thousands of confidential State Department cables that WikiLeaks began publishing in November 2010 under the heading “Cablegate.”

The response of media organizations and press freedom groups regarding Assange and WikiLeaks was confused and ambivalent. The tepid embrace by the media community was based in large measure on the fact that most professional journalists did not identify with Assange or his methods. And Assange did not help matters at all with his dissembling and obfuscation. Assange presented himself as a journalist at times, but his justifications for WikiLeaks’ actions ranged from disrupting government communications, to ending war, to “crushing bastards.” These are not necessarily journalistic motives. He also violated the most basic of journalistic ethics by failing to remove the names of human rights activists and journalists who had interacted with U.S. authorities in repressive countries, putting these individuals at grave risk.

Should Assange be disqualified from support from journalists and press freedom organizations because of his lack of journalistic ethics and his generally loathsome behavior? I don’t think so. On the other side of the equation, WikiLeaks has tried to suggest that it functions as a journalistic entity. I’m skeptical. WikiLeaks is best described as an anti-secrecy advocacy group that uses journalistic strategies to advance its goals.

Although the question of whether Julian Assange is a journalist is interesting, it’s not ultimately resolvable or even that relevant. The real question is whether Assange and WikiLeaks are part of the new global information ecosystem in which journalists operate. Here the answer is clearly yes. And the other important question is whether prosecuting Assange under the Espionage Act would threaten that system. Here again the answer is yes.

The 1917 Espionage Act makes it a crime to obtain, copy, or publicize documents relating to the defense of the United States. The language is both broad and vague and could be construed to apply to the media. However, journalists have not been previously charged for a number of reasons. The first is that legislative history suggests that Congress never intended that the law be used to prosecute the press. A prosecution would also almost certainly have to overcome a First Amendment challenge. Finally, the Justice Department has resisted prosecuting journalists because of the likely adverse public reaction and the damage that such a prosecution would do to the country’s international reputation.

Journalists may find Assange personally distasteful and generally disapprove of the reckless way in which the information was released. But WikiLeaks has in fact made an extraordinarily valuable contribution to the work of the media. The initial revelations from Cablegate were, of course, reported simultaneously in mainstream media outlets, from The Guardian to Le Monde. But the cables have also served as an invaluable resource that has enriched day-to-day coverage from Pakistan to Mali. Global citizens have benefitted tremendously as a result. Holed up in the Ecuadoran embassy in London, Assange seems a reduced figure. But if the U.S. government should ever proceed with prosecuting him under the Espionage Act, journalists around the world should rush to his defense, and the outcry should be loud and sustained. Not only would the prosecution threaten traditional journalists, but it would erode the new system of information distribution on which global citizens all depend. In other words, Julian Assange may not be a journalist, but journalists should defend him as if he were.

As the Assange case illustrates, journalists can no longer protect their own interests by advocating solely for press freedom. Instead, journalists must embrace the broader struggle for freedom of expression and make it their own.

This does not mean that journalism is going to disappear or that professional journalists are indistinguishable from bloggers, social media activists, or human rights advocates. And it certainly does not mean that the quality and accuracy of the information is irrelevant. Precisely because the line is growing blurrier by the day, those who define themselves as professional journalists need more than ever to maintain standards and report with seriousness and objectivity. However, it is up to journalists themselves to make distinctions between journalism and other kinds of speech, and these distinctions will always be fluid and subject to debate. Governments should not be participants in these discussions any more than they should be expected to weigh in on the debate about what constitutes poetry. Governments must protect all speech, whether journalistic or not. Respect for freedom of expression is the enabling environment for global journalism.

Aside from the political and practical considerations, there is also a legal question. Are journalists or the press as an institution entitled to special protection under law? Article 19 of the Universal Declaration of Human Rights makes no distinction between journalistic and nonjournalistic speech. It states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

To suggest that journalists are entitled to special legal protections is even more problematic in countries around the world where the media as an institution is historically compromised and the boundaries between journalism and other forms of expression are rapidly breaking down. In many countries “traditional” journalists who would be the beneficiaries of greater “press freedom” are hardly the most trustworthy or independent sources of news. Take Egypt during the Tahrir Square uprising. Most professional journalists in Egypt—coddled by decades of government largesse—continue to take their marching orders from the authorities. It was a relatively small number of independent journalists working with bloggers and activists who broke [former Egyptian president Hosni] Mubarak’s information blockade. Throughout 2013, as street demonstrations erupted in Russia, Turkey, and Brazil, the institutional media performed woefully, forcing protesters to turn to bloggers and social media activists for independent information. Independent journalists working in these sorts of environments operate in a “freedom of expression” environment that they share with other independent voices seeking to document and disseminate information.

Historically, even if journalists did not enjoy any special legal status, they have been treated with some deference by governments because of their perceived political clout. The logic is summed up by the maxim “Never pick a fight with someone who buys ink by the barrel,” a phrase that has been attributed by a top aide to President Gerald Ford but whose origin is in dispute. What it meant was that while governments would take on leakers and others who disclosed confidential information, they were less likely to challenge the media that published the information. This is still true, but the distinction is breaking down as the media fractures and its power diminishes. Prosecutors in the Chelsea (formerly Bradley) Manning case who argued that she should have been convicted of espionage and “aiding the enemy” because she knew that the documents she leaked, once public, would be accessed by al-Qaeda acknowledged that they would have presented the same argument had the materials been published by The New York Times. Meanwhile, British investigators are considering laying terrorism charges against The Guardian editor Alan Rusbridger for publishing accounts of the documents leaked by Edward Snowden.

Journalists play a unique and pivotal role in every society and must be able to do their work without interference from the state. But as the boundaries between journalists and nonjournalists continue to erode and any meaningful definition of journalism becomes more and more elusive, journalists have to recognize that their rights are best protected not by the special realm of “press freedom” but rather by ensuring that guarantees of free expression are extended to all. While it is natural and normal for journalists and press freedom organizations to give special emphasis to their journalistic colleagues, they can’t stand on the sideline of the broader struggle for freedom of expression, both online and off, and must actively defend the rights of all people everywhere to gather news, express their opinions, and disseminate information to the public.

Reprinted from “The New Censorship: Inside the Global Battle for Media Freedom” by Joel Simon. Copyright 2015 by Joel Simon

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