Matthew Schafer fisks some of Carr’s language here with regards to the legal protections available to journalists and other people who publish their writing. But I’m also not sure that all that’s at stake either in Greenwald’s case, or in Louisiana, where another effort to restrict the information that journalists can publish was just passed into law, is the definition of journalism itself.
The question of who counts as a journalist wasn’t so much the issue when David Gregory, the host of Meet The Press, asked Greenwald, who appeared on his show in the aftermath of the initial publication of his stories based on documents provided by Snowden, whether he thought that by meeting with and protecting his source, he had opened himself up to prosecution. “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn’t you, Mr. Greenwald, be charged with a crime?” Gregory asked.
Greenwald put him on immediate blast, but it wasn’t just a question that, coming from one journalist to another, smacked of professional disloyalty, or lazy thinking on Gregory’s behalf. It’s a prospect that lawmakers on both sides of the aisle have raised as an outcome they’d prefer to happen in the real world, rather than just as a hypothetical revenge fantasy. Rep. Mike Rogers and Sen. Dianne Feinstein have both suggested they’d like to see Greenwald prosecuted, as well as Snowden, though it’s not entirely clear on what grounds: Rogers seems to believe that Greenwald didn’t just publish classified information, he mislead the American public in some way that should be punishable. And Rep. Peter King has said he thought Greenwald should be prosecuted for endangering CIA agents, though the threat he believes Greenwald poses to the republic appear to exist more in his imagination than anywhere else.
At here isn’t the issue of whether Greenwald is a journalist–he’s employed by the Guardian, an obviously established outlet with a print equivalent–though his previous life as a lawyer and his clear perspective on issues makes him an easier target than, say, the Washington Post‘s Barton Gellman, who also worked with Snowden as a source. It’s the act of publishing material and working with sources, which is an obviously journalistic function. The argument isn’t that Greenwald in particular shouldn’t be protected when performing these functions. It’s that no one should, but made in a way that goes after the softer target, rather than the more established one at a publication that’s famously been down a similar road in the past and won.
Similarly, Louisiana Gov. Bobby Jindal just signed a law, going into effect on August 1, that makes it illegal for reporters to publish either the names of people who hold concealed carry permits, or to publish other information contained in permit applications (or for anyone else to release that information publicly). As the Reporters Committee For Freedom Of The Press points out, this is an obvious infringement of the First Amendment, and if it’s challenged in court, it’s hard to see the law being upheld. But the law carries serious penalties: a jail sentence of as much as six months, and fines up to $10,000. Challenging it will require someone who has the legal and financial resources to stand up to those penalties, and that’s more likely to be a legacy publication than a reporter who works independently for a site he or she runs, or on freelance assignments.
Donald Meyers, who writes for the Salt Lake Tribune, pointed out in a recent column that there’s a difference between Utah’s attempts to protect similar information and Louisiana’s. “Utah’s Government Records Access and Management Act labels concealed-carry permit information as protected information, meaning the state Bureau of Criminal Identification cannot release the information, nor even confirm if someone has a permit or has lost one,” he explained. “The only penalty it prescribes is for state workers who disclose such information, and it is a class A misdemeanor. But there is no penalty if, for example, one were to point out, through other sources, that Sens. Howard A. Stephenson, R-Draper, and Mark Madsen, R-Eagle Mountain, and Rep. Curt Oda, R-Clearfield, all carry concealed weapons.” Utah’s law may not be attractive for those of us who prize open government, but at least it recognizes a difference in the behavior and status of sources and journalists.
Carr may be correct that trying to define people out of the category of journalists is one way to try to limit the number of people who receive the protections that are traditionally extended to those who are recognized as legitimate reporters and columnists. But both of these cases suggest that something else is at work here. Some of the pressure being applied to journalists right now may be aimed at people who have to make their case for being granted journalistic status, rather than simply having their profession recognized for what it is. But they aren’t the only targets of that pressure. They’re just the easiest ones.