Think you’re a journalist? The Columbia Law Review may not agree
“[E]xtending special privileges to an online journalist” might “blur” crucial distinctions. And writing for print outlets might not help. Blur, indeed.
If you’ve ever looked back on my federal criminal case and wondered how all this could have happened, and whether the United States is capable of protecting journalism from retaliatory state action, take a look at this article on my case in the Columbia Review of Law, which I’ve just come across this evening. Having only scanned it, I note that the author, Philip F. DiSanto, is generally sympathetic to much of the case we attempted to make — sometimes successfully — in the Northern District of Texas, which is good. As such, the manner in which he undermines it through misunderstandings of journalism, law, and the specific facts at issue in my case is all the more telling.
DiSanto writes, “the unique circumstances of his prosecution reveal weaknesses in the federal identity-fraud regime that affect more than just bloggers with questionable journalistic credentials.” Elsewhere: “While Brown’s case may not lend itself to reevaluating decades of statutory interpretation, indictment of an individual for genuinely journalistic activity might.” And: “Due to this lack of precedent, extending special privileges to an online journalist or blogger would require an expansive interpretation of the Press Clause that blurs distinctions between members of the public and ‘the press.’” It gradually becomes clear that DiSanto, in the course of assessing the case for its potential to impact journalists, and in attempting to define journalism in a legal context, has not bothered to study either subject.
Presumably it would be unnecessary to explain to most of the sort of people who read me that “online journalists” wouldn’t need “special privileges” since they are not distinct from journalists either in the view of the press itself or of the law, which is why some of the best-known and best-regarded journalists write solely for online outlets, whereas some of them write for no outlet at all, thus making them “bloggers”. This was already true in 2013, when this CLR piece was published, and it seems to have been true in 2015 when I won the National Magazine Award for columns and commentary for my column for the online-only The Intercept, beating The New Yorker and TIME and other “real” outlets (given that I wrote these columns with pencil and paper from the hole and mailed them in to my editors, this may perhaps still be considered be the polar opposite of “online journalism”, and thus quite fancy and legitimate indeed). I also won a New York Press Club award despite not having paid my dues since 2009 when I lived there and thought it would be quaint to be a member of some sort of union. Later, upon emerging from prison — I won the Folio Award for best local coverage on the strength of my articles on the Dallas city council. And when my next book comes out next year, I’ll win some more awards, or, if necessary, seize them by force.
At any rate, DiSanto seems to have no idea that, like any number of others in the press, I was a print journalist before I wrote for any online outlets, and that by the time I was 21, I’d written for two weekly newspapers, one daily, a dozen or so print magazines, and whatever else I’ve forgotten since. I’d continued to be a print journalist up until the years before my arrest, and indeed this is where the great majority of my money came from (and not from the $250 The Guardian sometimes paid for articles that appeared on its website). He’s also strangely unaware that this doesn’t matter anyway given that we have Pulitzer winners in this country who started out as bloggers, such as Glenn Greenwald, whose only extensive print publications have been his books. One may object that putting out books makes one more of a journalist, which is also false, but at any rate covers me as well, since my first book came out in 2006 and was well-reviewed in outlets like Skeptic — one of the many print outlets I also wrote for before being demoted to “blogger” in the CLR) and Skeptical Inquirer — one of many online outlets for which I wrote during my time involved with Anonymous.
Which brings us to Anonymous. Does my open partisanship and direct involvement with an amorphous movement and its chief node of activity in those days, the Anonops IRC, perhaps make me less of a journalist than the CNN reporters who say “we” when reporting on wars, and who are generally correct to do so given how often they serve the interests of the Pentagon? Am I less of a journalist than Mark Mazetti of the NYT, who was once caught sending a draft of an upcoming Maureen Dowd column to the CIA? Am I less of a journalist than Maureen Dowd, and if so, can you come closer when you say that so I may spit in your face? When Henry Luce cooperated with the CIA on a more direct and comprehensive basis, were his staffers not journalists? When the CIA infiltrated various wire services and major outlets throughout the Cold War, who were the journalists?
When this piece was written, I was under a gag order that the DOJ had sought on the grounds of the “tone” I used in an article I’d written from jail on the subject of Snowden, which the prosecutor also noted had been “critical of the government”. I’d been recognized as a journalist, and my case had been recognized as a threat to journalism, by several major bodies including Reporters Without Borders. Meanwhile the Columbia Law Review was preparing to run an article in which it would tell the nation’s judges, lawyers, prosecutors, and law students that journalism wasn’t quite under threat yet, because this Barrett guy is a “blogger”, and hasn’t been indicted for “genuinely journalistic activity”, at least if we forget about the charges for linking to a file that Wired journalist Quinn Norton also testified that she’d linked to when both of us were trying to investigate the contents that might be yielded from a hack that the FBI allowed to proceed via its confidential informant. Later, those charges were dropped by the government itself.
Had it occurred to DiSanto or the editors to take a look at the search warrant that was executed six months before my arrest, they would have noticed something called “Project PM” listed therein, along with “Echelon2.org.” The former was a crowd-sourced research group that had already been cited as a journalistic enterprise well before my arrest, and is today widely commended for what our volunteers managed to discover about the same firms and technologies that went on to help undermine the 2016 election along with Cambridge Analytica. The latter was the website on which we presented our findings. Also listed was “HBGary” and “Endgame Systems,” two of the firms I wrote about in The Guardian and elsewhere, and neither of which ended up figuring into my case at all.
But DiSanto isn’t to be blamed for not picking up on this, because neither did the great majority of the “real” journalists that covered my case. Indeed, given that the Reuters article that appeared after my arrest never noted I was a journalist and instead referred to me as being known for threatening to hack a drug cartel — one of two Reuters pieces on me that, seven years later, would be reissued in corrected form after I started making it known what else I’ve caught Reuters doing — one may hardly blame a lawyer for not knowing what all these journalists who do merit special protections, presumably, couldn’t figure out themselves. My hometown paper, meanwhile, claimed that I’d hacked MasterCard and Visa, and The New York Times had already decided, in November 2011, that there was some question as to whether or not I was even a real person.
None of them managed to find that search warrant, or the background that an old friend of mine had written to accompany it. For the internet is a mysterious thing, like journalism itself, and my old ally Michael Hastings, formerly of Newsweek and more recently of Rolling Stone, had hidden this information on a secret website known to its users by the cryptic designation of “Buzzfeed”.
Yes, journalism is under threat today, just as it was then — from the state, and from the press itself, and indeed from anyone else so constituted that they believe legitimacy is conferred by institutions.
I would go into this further, as there are several factual errors beyond my status as a blogger and at least one of them deals with the legitimacy of prosecuting non-journalists for linking to stolen data, but for now I have to finish an article for Counterpunch regarding several prominent “legitimate” journalists who have been fabricating stories in the pages of one of America’s most revered institutions of political reporting.
… in the printed pages, mind you.
