Who gets to decide?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That is the text of the First Amendment to our Constitution. It clearly states that Congress can't pass laws that interfere with the freedom of the press. And so it has become conventional wisdom in this country that journalists enjoy special privileges against prosecution for the stories they tell and the things they write. The New York Times was never taken to court for publishing the Pentagon Papers. But Daniel Ellsberg faced trail for leaking them to the press.

This issue has resurfaced lately with reporters who play more than a passive role in publishing leaked documents. For example, if Glenn Greenwald is to be believed, Edward Snowden gave him thousands of documents and basically told him "you decide" which one's to make public. It seems to me that blurs the line quite a bit between leaker and journalist.

Of course much of this conversation includes an assumption that there is a clear distinction between journalist and citizen. If journalists are exempt from laws that govern the rest of us, its important to know who is included in that definition. Interestingly enough, it sounds like the courts have made no such distinction.

The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government. This right was described in Branzburg v. Hayes as "a fundamental personal right" that is not confined to newspapers and periodicals.

That's a good thing because these days, anyone with a computer can publish and disseminate information, ideas and opinions. I would suggest that, based on the court's understanding of the First Amendment and current technology, there are no clear lines defining what it means to be a journalist. The New York Times and Glenn Greenwald have no special privileges that aren't available to me publishing here on my little blog.

Apparently Greenwald thinks there is a distinction.

Through all the bombast, Greenwald makes no serious effort to defend as a matter of law the leaking of official secrets to reporters. He merely asserts that “there are both formal and unwritten legal protections offered to journalists that are unavailable to anyone else. While it is considered generally legitimate for a journalist to publish government secrets, for example, that’s not the case for someone acting in any other capacity.”

He's a lawyer and I'm not. So perhaps he is aware of "both formal and unwritten legal protections" that apply to journalists and not the rest of us. But I have a hard time imagining what they'd be.

I'm not saying all this because I think Glenn Greenwald should be prosecuted for publishing leaked documents. I'll leave that one for others to decide. My concern is that there are very real questions presented by this situation that don't lend themselves to the easy black-and-white answers that Greenwald has a habit of embracing. We should be talking about those questions. The most important one right now is "who gets to decide what information is private/secret and what is made public?" When it comes to making that decision, apparently even Greenwald and Assange don't always agree. But the truth is that - as is the case in that situation - lives are often on the line. All I know is that I don't think the right answer is that anyone with access to a leak and a blog should be able to make that call on their own.