“We’re All Journalists Now”: No, Glenn Greenwald Cannot Be The One Who Decides What Stays Secret
This Sunday, The New York Times Book Review will finally print Michael Kinsley’s review of Glenn Greenwald’s No Place to Hide, two and a half weeks after the review was published online and provoked a polarizing debate involving Greenwald, the Times‘ Public Editor Margaret Sullivan, Kinsley again, and countless commentators who promptly took sides in the dispute about government secrecy and freedom of the press.
Some readers, including Sullivan, objected to Kinsley’s smart-alecky tone and psychological sketches of Greenwald, Edward Snowden, and Julian Assange, which these critics saw as bordering on ad hominem attacks. But there were also more substantive criticisms levied by Sullivan and many others, most of them boiling down to the claim that it was simply outrageous of Kinsley to deny journalists an absolute right to print classified material passed on to them by leakers.
Here is the most controversial passage from the review:
It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald. [The New York Times]
Some objected to this passage because they thought it contradicted another line of the review in which Kinsley called the Snowden leaks a “legitimate scoop.” But for most critics, the issue was far more fundamental: How dare anyone suggest, and in the pages of America’s newspaper of record no less, that the government, and not an intrepid journalist like Glenn Greenwald, should get to decide, while wielding threats of prosecution and imprisonment, what information is secret and what is not?
Clearly, the critics implied, Kinsley was expressing a deep-seated sympathy for authoritarianism that no self-respecting American citizen, let alone a journalist professionally and existentially devoted to the press freedoms enshrined in the First Amendment, could possibly endorse.
There’s just one problem with this objection: Kinsley was almost certainly correct.
In the ensuing debate about the review, The Atlantic‘s Conor Friedersdorf made the strongest and most concise case against Kinsley’s position. When we look at the competing track records of the government and journalists in deciding what should be kept secret and what should be made public, Friedersdorf argued, it is clear that journalists have done a far better job. For that reason, journalists, and not the government, should get to decide.
Friedersdorf also made a point of stipulating that this does not imply blanket permission for leakers to divulge to journalists any information they wish. In Friedersdorf’s words, “The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn’t to say that they always should be), but where journalism based on classified information is not criminalized.”
That sounds like a perfectly reasonable compromise — at least until you think it through.
Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf’s least-bad system, it’s journalists who decide what can and can’t be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated.
To which many will no doubt respond: So what? That’s exactly how it should work!
Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, “it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts.”
We’re all journalists now.
In such a world, Friedersdorf’s rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime.
In such a world — a world completely lacking in disincentives to leak classified information — government secrecy would be rendered impossible.
“But no,” I imagine Friedersdorf objecting. “I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish.”
To which the proper reply is to repeat Kinsley’s line that making such a call — deciding who is and who is not a “real” journalist — is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?
And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it?
What about someone who runs a blog with a tenth of Sullivan’s traffic and journalistic experience? A hundredth? A thousandth?
We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That’s where Friedersdorf’s “least-bad system” leads us, I’m afraid.
Which means that Friedersdorf leads us right back to Kinsley: “Someone gets to decide, and that someone cannot be Glenn Greenwald.”
Pace Friedersdorf, the least-bad system is the one we have right now: Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.
This system isn’t perfect. Free speech absolutists don’t like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.
But in a world where secrets are necessary, this may be the best that a democracy can do.
By: Damon Linker, The Week, June 6, 2014
“In The Name Of Free Speech”: The Supreme Court Has Given Us A Government Of, By, And For The 1 Percent
In case after case, the five conservative justices on the Supreme Court have held unconstitutional all efforts—state as well as federal—to restrain the corrosive influence of limitless individual and corporate expenditures and contributions in our electoral process. They do this in the name of free speech.
In their view, the First Amendment absolutely guarantees the wealthiest Americans the right to spend as much as they like to manipulate the American political system to their advantage. According to these justices, as long as the wealthiest Americans do not directly bribe politicians to vote in their favor, the Constitution demands the flow of money is beyond regulation and that the rest of us must simply let the chips fall where they may.
This conception of the First Amendment and of the American constitutional system is truly perverse. By defining “corruption” so narrowly, these justices have missed the central point of self-governance—our elected representatives are supposed to be responsive to the will of the majority.
I don’t mean to suggest, of course, that our elected officials are supposed to slavishly obey the will of the majority. Sometimes, the majority is wrong, and it is the responsibility of our elected officials—and our judges—to reject certain policies even if they are supported by the majority.
What our elected representatives are absolutely not supposed to do, however, is to reject the values and preferences of the majority of our citizens in order to curry favor with a small cohort of extremely wealthy individuals who are eager to leverage their wealth to gain control of our government. And this is so even if their money corrupts the system in ways that are more subtle than overt bribes. The vast majority of Americans understand this point clearly. Our five conservative justices do not.
Of course, this would not matter very much if the wealthiest Americans shared the values and preferences of the majority of American citizens. If their values and preferences were aligned with those of most other citizens, then this would not be much of a problem. In fact, though, there is no such alignment. On a broad range of issues, there is in fact a sharp divergence between the views of the wealthiest 1 percent of Americans and the other 99 percent.
Recent surveys reveal, for example, that 78 percent of Americans believe that government should guarantee a minimum wage high enough to keep a worker’s family above the poverty level, but only 40 percent of the wealthiest Americans agree; 87 percent of Americans believe that government should spend whatever is necessary to ensure that our children can attend good public schools, but only 35 percent of the wealthiest Americans agree; 81 percent of Americans believe that a top priority of government should be to protect the jobs of American workers, but only 29 percent of the wealthiest Americans agree; 68 percent of Americans believe that government should take steps to ensure that every American who wants to work has the opportunity to do so, but only 19 percent of very wealthiest Americans agree; 78 percent of Americans believe that our government should ensure that students who cannot afford to go to college can nonetheless manage to do so, but only 28 percent of the wealthiest Americans agree.
Still, none of this would matter if the wealthiest 1 percent of Americans had only 1 percent of the influence in the political process. It is natural, after all, that people disagree about these sorts of issues, it is natural that rich people might hold different views on certain issues than people who are not rich, and it is quite proper for these issues to be worked out through the political process.
What is distressing, however, is that our political system does not work that way. Because of the extraordinary power of money in the electoral process, and thanks to the decisions of our five conservative justices, the very wealthiest Americans have a wildly disproportionate influence on our political process.
According to a recent Russell Sage Foundation study, almost 70 percent of wealthy Americans contribute regularly to political candidates, roughly half are in regular contact with members of Congress, and more than a fifth affirmatively “bundle” their contributions with other wealthy individuals. In the 2012 election cycle, a total of 99 Americans (mostly billionaires) provided 60 percent of all the individual Super PAC money spent by candidates.
Of course, none of this would matter if money did not affect outcomes. But it does. In 2012, 84 percent of the House candidates and 67 percent of the Senate candidates who spent more money than their opponents won their elections. Although money cannot dictate the outcome of elections, it matters, and it matters a lot—which is why candidates spend inordinate amounts of time scrambling to raise it and why the wealthiest Americans spend it so “generously” to elect their favored candidates.
But even this might not matter if our elected representatives disregarded the source of their campaign funds and, once elected, sought to represent the interests of their constituents—rather than the interests of their largest donors. Unfortunately, recent research (PDF) by the political scientists Martin Gilens of Princeton University and Benjamin I. Page of Northwestern University shows that it doesn’t work that way.
To the contrary, what they found is that, although average Americans tend to get the policies they want when those policies correspond with the interests of the wealthiest Americans, when their views diverge from those of the wealthiest Americans, they usually lose and the preferences of the wealthiest Americans carry the day. Most of the time, in other words, the 1 percent gets its way. Indeed, as Gilens and Page observe, when the preferences of the average American conflict with the preferences of the top 1 percent, “the preferences of the average American appear to have only a miniscule, near—zero,… impact upon public policy.”
In rather sobering terms, Gilens and Page conclude that, although Americans “enjoy many features central to democratic governance, such as regular election, freedom of speech and association, and a widespread [opportunity to vote], we believe that if policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.”
And this, say our five conservative justices, is demanded by “freedom of speech.” This is so, they insist, despite the fact that the First Amendment was designed, first and foremost, to preserve, protect, and support an effective system of democratic governance.
As James Madison wrote in Federalist 52, the whole point of our system of governance is to make our elected officials dependent on the will of “the people”—not on the will of the “top one percent.” What we are witnessing is a severe and unprincipled corruption of the American political system, and it is mortifying that this corruption is being carried out not by self-interested politicians, but by the justices of the Supreme Court—in the name of the First Amendment. Can the irony really be lost on them?
By: Geoffrey R. Stone, The Daily Beast, June 3, 2014
“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock
In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.
As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”
Wait, really? Yep, that’s what Thomas actually believes.
…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.
Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.
In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.
Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.
Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.
As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”
This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”
That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.
By: Steve Benen, The Maddow Blog, May 6, 2014
“The Grazing Moocher”: Cliven Bundy Is Free To Be Crazy And We’re Free To Call Him On It
I want to tell you one more thing I know about freedom of speech.
Having pontificated about how “the Negro” was actually better off when not burdened by freedom and government subsidies, fringe hero Cliven Bundy is shocked – shocked! – that people would dare take offense at his musings. He went on CNN Friday morning to explain (h/t ThinkProgress, which was kind enough to add the emphasis):
I took this boot off so I wouldn’t put my foot in my mouth with the boot on. Let me see if I can say something. Maybe I sinned and maybe I need to ask forgiveness and maybe I don’t know what I actually said. But you know, when you talk about prejudice, we’re talking about not being able to exercise what we think and our feelings.
We don’t have freedom to say what we want. If I call — if I say negro or black boy or slave, I’m not — if those people cannot take those kind of words and not be offended, then Martin Luther King hasn’t got his job done then yet. They should be able to — I should be able to say those things and they shouldn’t offend anybody. I didn’t mean to offend them.
Let’s set aside his truly weird suggestion that Martin Luther King Jr.’s “job” was to move society to a place where racism is completely acceptable in the public space. (I kind of thought that he was trying to move the country away from there, but whatever.)
Let’s instead talk about Bundy’s concept of freedom of speech. I get that Bundy – who achieved fame and a level of conservative-libertarian hero cred by asserting his sovereign right to freeload off of public lands – has some novel ideas about liberty and freedom. (Case in point, his belief that anyone could be better off without liberty and freedom.) But maybe I can help him out on this one.
The fact is that he does have the freedom to say what he wants. I know this because he said what he wanted and is still at large and able to make appearances on CNN trying to explain himself. He’s in absolutely no danger of being arrested for his racist views regarding black people. He has, in fact, been furnished a metaphorical megaphone in the form of just about every major media outlet in the country.
The best and most important expression of free speech is in the First Amendment to the Constitution: “Congress shall make no law … abridging the freedom of speech, or of the press…” It says the federal government is not allowed to make freely expressing yourself illegal. It doesn’t say anything about a sovereign right to express yourself without other people expressing themselves back.
As a wingnut residing on the conservative end of the political spectrum, I would think Bundy favors free markets, but he seems genuinely mystified at his experience with the free market of ideas. He proffered his thoughts on race and – as happens with markets – consumers of information and ideas weighed them and decided that they weren’t buying.
So Bundy’s feelings are hurt because he expressed and society expressed itself back. But contrary to what he seems to think, this wasn’t an absence of free speech, it was an expression of it.
By: Robert Schlesinger, U. S. News and World Report, April 25, 2014
“Platinum-Level Citizenship”: Highly-Religious Christians’ Battle To Change The Very Nature Of The First Amendment
Ask a conservative Christian about the President of the United States, and you’re likely to hear that Barack Obama has been waging a “war on religion” since pretty much the moment he took office in 2009. As laughable as the assertion may be, there’s little doubt that many have come to believe it, spurred on of course by opportunistic politicians and right-wing talk show hosts whose stock in trade is the creation of fear and resentment. In response, those conservative Christians have mounted a little war of their own, fought in the courts and state legislatures. The enemies include not just the Obama administration but gay people, women who want control of their own bodies, and an evolving modern morality that has left them behind.
In the process, they have made a rather spectacular claim, though not explicitly. What they seek is nothing short of a different definition of American citizenship granted only to highly religious people, and highly religious Christians in particular. They are demanding that our laws stake out for them a kind of Citizenship Platinum, allowing them an exemption from any law or obligation they’d prefer to disregard. They would refashion the First Amendment in their image.
Last week saw a number of new developments in the effort to create this elevated status for religious people, as bills seeking to enshrine discrimination against gay couples moved forward in two states. A bill in Kansas would explicitly allow both businesses and government to discriminate against gay couples in pretty much any way they wanted. A movie theater could turn gay couples away at the door, or a paramedic could refuse to treat a gay person having a heart attack, and they’d be immune from prosecution or lawsuits. After passing the Kansas state house overwhelmingly, the bill died in the state senate, in a brief (though likely temporary) moment of sanity.
A bill in Arizona did better, passing both houses, and it now awaits Governor Jan Brewer’s signature. This one was written more broadly, without the direct focus on gay couples, but its effects would be the same. It grants to any person, organization or corporation a nearly unlimited right to assert their “sincerely held” religious beliefs as a shield against lawsuits for discrimination.
Similar bills are pending in a number of conservative states; this won’t be the last we hear of them. And the Supreme Court will soon hear the case of Hobby Lobby, the retail chain that would like to be exempt from some of the requirements of the Affordable Care Act because its owners are Christians, and therefore they should be able to select the provisions they’ll abide by and not bother with those they find religiously objectionable.
The implications couldn’t be clearer. Let’s consider the put-upon Christian florists of Arizona, who might be subjected to the unspeakable horror of taking a gay couple’s money. What if one of those florists decided that since being born again through Christ is the one and only path to heaven, selling flowers to Jews or Muslims or Catholics would violate his deeply felt religious beliefs? Would he then be free to put up a sign in his window saying, “We only serve Protestants here”? According to the Arizona law, he would, regardless of what that pesky Civil Rights Act says. Or what if the owner of an accounting firm decided that since his religion places men above women, all his female employees will be paid half of what he pays male employees for doing the same job? It’s his religious belief, after all.
Anyone could say that almost any belief they have springs directly from their faith and their reading of scripture, and the state would be required to abide by it. Your faith tells you not to obey laws against discrimination? Well, maybe mine tells me that paying taxes is an offense to God. And my neighbor is a biblical literalist, so when his teenage son mouthed off to him, he arranged for the boy to be stoned to death, just like the Lord instructs quite clearly in Deuteronomy 18 and Leviticus 20. Surely we can’t convict him of murder, since he was only following his sincere religious beliefs.
You might say, well, those beliefs are ridiculous. Maybe they are. And maybe I find your opinions about gay people ridiculous. But up until now, neither one of us has had to have our own liberty compromised because of what the other believed, because we defined the First Amendment’s free exercise clause through religious practice. The government can’t tell you how to worship your god, and it can’t do things that make it difficult for you to worship as you’d like.
But now, conservatives are pushing a much broader conception of religious freedom, one that extends beyond religious practice to virtually anything a religious person does. But it’s when you take your religious practices outside of your own faith, your own beliefs, and your own practice and start applying them to other people that you lose the special privileges that religion is accorded. As an old saying has it, my right to swing my fist ends precisely where your nose begins.
Any Christians who want to can believe that gay people are sinful and wicked, or that gay marriage is a terrible thing. What they can’t do is use those beliefs as a get-out-of-jail-free card that gives them permission to break the law or escape civil liability when they harm other people.
Up until now, the distinction between religious practice and the things religious people do when they enter the secular world has worked pretty well. Anti-discrimination laws don’t mean that a rabbi has to conduct a wedding for two Baptists. Religious organizations can hire only people of their own faith. But once you enter into other realms, like commerce, you have to obey the laws that govern those realms.
If we grant religious people the kind of elevated citizenship conservatives are now demanding, where the special consideration given to religious practice is extended to anything a religious person does, the results could be truly staggering. Why stop at commerce? If things like employment law and anti-discrimination laws don’t apply to religious people, what about zoning laws, or laws on domestic abuse, or laws in any other realm?
The supporters of these laws, and of Hobby Lobby, argue that religious people shouldn’t have to put aside their beliefs when they act in the secular world. “It’s alien to me that a business owner can’t reflect his faith in his business,” said one Republican Arizona legislator. But when your business puts you in contact with people who don’t share your faith, putting aside your religion is precisely what you have to do, if “reflecting” that religion means violating the law.
For many years, conservatives would argue that they didn’t really object to equal rights for gay people, they were just against “special rights.” In practice, what they meant by “special rights” were things like the right not to be fired from your job or evicted from your home because of your sexuality, rights that weren’t special at all. But today, religious conservatives are demanding truly special rights for themselves. They want one set of laws that applies to everyone else, and another set that applies only to the religious. Or more precisely, they want religious people—but no one else—to be able to pick and choose which laws apply to them, and which they’d prefer to ignore. That’s a twisted version of the liberty the First Amendment was supposed to guarantee.
By: Paul Waldman, Contributing Editor, The American Prsopect, February 24, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 