Michael Kinsley responds to the NYT Public Editor

Yesterday, Margaret Sullivan, the New York Times‘s public editor, published a strong attack on Michael Kinsley‘s “book review” of Glenn Greenwald‘s book covering the Snowden affair called No Place to Hide. Kinsley asked for an opportunity respond, and it is published on the public editor pages today.

One of Kinsley’s misleading statements in his rebuttal is the following:

The Supreme Court has repeatedly turned down opportunities to create a “journalist’s privilege.” Sullivan may not like this. Heck, I don’t especially like it. But it’s a fact.

This is not a fact; it is in fact false. The Supreme Court has declined to create a reporter’s privilege in one case only, not repeatedly. Via Constitutional Law Reporter:

The Supreme Court has only considered the existence of a reporters’ privilege once during its storied history, and it ultimately concluded that the First Amendment does not afford such protections. Yet, Branzburg v. Hayes is cited today as establishing a test for determining when the reporters’ privilege can be used to prevent confidential sources and information from being compelled.

* * *

The majority, however, refused to close the door completely. It noted that “official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources” could be unconstitutional.

Justice Lewis F. Powell Jr. went even further in his concurring opinion. In addition to making it clear that “the Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources,” he also stated that “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”

Justice Powell then went on to describe a balancing test that is still used in most federal courts when determining the existence of the reporters’ privilege. “[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions,” Justice Powell explained.

However, when one looks at the federal Courts of Appeal, the result is stunningly different. Via Wikipedia:

Reporter’s privilege in the United States (or sometimes journalist’s privilege), is a “reporter’s protection under constitutional or statutory law, from being compelled to testify about confidential information or sources.”[1] It may be described in the US as the qualified (limited) First Amendment right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery[2]

The FirstSecondThirdFourthFifthEighthNinthTenthEleventh, and D.C. Circuits have all held that a qualified reporter’s privilege exists. Furthermore, forty states and the District of Columbia have enacted shield laws protecting journalists’ anonymous sources.[3]

So until the Supreme Court decides to hear a case involving the split in the opinions of the various circuit courts, there is ample existing law that there is a reporter’s privilege.

Nonetheless, my favorite declaration in Kinsely’s attempt to rehabilitate himself is the following:

Like most people except Glenn Greenwald, I think the issue is complicated and I have other things to do.

If Kinsley has other things to do, by all means move on and don’t let the door hit you in the ass on the way out. Apparently he was unable, though, to resist his continuing ad hominem attacks on Glenn Greenwald and now Margaret Sullivan.

Dealing with Wikileaks

In today’s Sunday New York Times Magazine, Bill Keller, the Times’ Executive Editor, writes a comprehensive essay detailing the interactions between the Times, other papers and Julian Assange that lead to the publication of thousands of secret US documents. The essay is worth a full read and it seems clear to me that the work done by the Times was careful and responsible. We would be in deep trouble if we lost the abilities of newspapers like the Times.

Although it is our aim to be impartial in our presentation of the news, our attitude toward these issues is far from indifferent. The journalists at The Times have a large and personal stake in the country’s security. We live and work in a city that has been tragically marked as a favorite terrorist target, and in the wake of 9/11 our journalists plunged into the ruins to tell the story of what happened here. Moreover, The Times has nine staff correspondents assigned to the two wars still being waged in the wake of that attack, plus a rotating cast of photographers, visiting writers and scores of local stringers and support staff. They work in this high-risk environment because, while there are many places you can go for opinions about the war, there are few places — and fewer by the day — where you can go to find honest, on-the-scene reporting about what is happening. We take extraordinary precautions to keep them safe, but we have had two of our Iraqi journalists murdered for doing their jobs. We have had four journalists held hostage by the Taliban — two of them for seven months. We had one Afghan journalist killed in a rescue attempt. Last October, while I was in Kabul, we got word that a photographer embedded for us with troops near Kandahar stepped on an improvised mine and lost both his legs.

We are invested in the struggle against murderous extremism in another sense. The virulent hatred espoused by terrorists, judging by their literature, is directed not just against our people and our buildings but also at our values and at our faith in the self-government of an informed electorate. If the freedom of the press makes some Americans uneasy, it is anathema to the ideologists of terror.

So we have no doubts about where our sympathies lie in this clash of values. And yet we cannot let those sympathies transform us into propagandists, even for a system we respect.

I’m the first to admit that news organizations, including this one, sometimes get things wrong. We can be overly credulous (as in some of the prewar reporting about Iraq’s supposed weapons of mass destruction) or overly cynical about official claims and motives. We may err on the side of keeping secrets (President Kennedy reportedly wished, after the fact, that The Times had published what it knew about the planned Bay of Pigs invasion, which possibly would have helped avert a bloody debacle) or on the side of exposing them. We make the best judgments we can. When we get things wrong, we try to correct the record. A free press in a democracy can be messy. But the alternative is to give the government a veto over what its citizens are allowed to know. Anyone who has worked in countries where the news diet is controlled by the government can sympathize with Thomas Jefferson’s oft-quoted remark that he would rather have newspapers without government than government without newspapers.

The intentions of our founders have rarely been as well articulated as they were by Justice Hugo Black 40 years ago, concurring with the Supreme Court ruling that stopped the government from suppressing the secret Vietnam War history called the Pentagon Papers: “The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people.”

Bruce Sterling on Wikileaks

Bruce Sterling
Bruce Sterling via Wikipedia

Bruce Sterling is a terrific thinker and writer covering the intersection of culture, politics, and technology. Here he sets out his thoughts about the impact of Wikileaks and its impact on the world. Worth a full read, but here is an excerpt:

Unfortunately for the US State Department, they clearly shouldn’t have been messing with computers, either. In setting up their SIPRnet, they were trying to grab the advantages of rapid, silo-free, networked communication while preserving the hierarchical proprieties of official confidentiality. That’s the real issue, that’s the big modern problem; national governments and global computer networks don’t mix any more. It’s like trying to eat a very private birthday cake while also distributing it. That scheme is just not working. And that failure has a face now, and that’s Julian Assange.

Assange didn’t liberate the dreadful secrets of North Korea, not because the North Koreans lack computers, but because that isn’t a cheap and easy thing that half-a-dozen zealots can do. But the principle of it, the logic of doing it, is the same. Everybody wants everybody else’s national government to leak. Every state wants to see the diplomatic cables of every other state. It will bend heaven and earth to get them. It’s just, that sacred activity is not supposed to be privatized, or, worse yet, made into the no-profit, shareable, have-at-it fodder for a network society, as if global diplomacy were so many mp3s. Now the US State Department has walked down the thorny road to hell that was first paved by the music industry. Rock and roll, baby.

Now, in strict point of fact, Assange didn’t blandly pirate the massive hoard of cables from the US State Department. Instead, he was busily “redacting” and minutely obeying the proprieties of his political cover in the major surviving paper dailies. Kind of a nifty feat of social-engineering there; but he’s like a poacher who machine-gunned a herd of wise old elephants and then went to the temple to assume the robes of a kosher butcher. That is a world-class hoax.

Assange is no more a “journalist” than he is a crypto mathematician. He’s a darkside hacker who is a self-appointed, self-anointed, self-educated global dissident. He’s a one-man Polish Solidarity, waiting for the population to accrete around his stirring propaganda of the deed. And they are accreting; not all of ‘em, but, well, it doesn’t take all of them.