January 19, 2022
(NEW YORK) — There has been an age-old debate in journalism regarding the ethics of distributing information that is stolen, classified, or obtained from otherwise unknown origins. Many journalists have had legitimate debates and disagreements as to whether or not publishing this type of information lives up to the highest standards of journalism. Although there are certainly valid arguments to be made in both directions, I would argue that it is ethical for a journalist to publish this type of material, if it is uncovering information that is vital to the public interest.
When looking at this debate, one must weigh the benefits of getting information to the public, as opposed to the potential ethical and, in some instances, legal considerations. Transparency is a key aspect of being a journalist and is what inspires many people to enter many media professions. Additionally, holding powers to account is a central tenet of journalism and this often involves a long and arduous process of fact-finding and interviewing sources. Inevitably, there have been many instances, throughout the years, whereby journalists receive a document from a source that comes from unknown origins or is even known to be stolen. This can present professional journalists with a complex and vexing ethical dilemma—is it best to publish the information or does this violate the ethical boundaries of journalism? Veteran journalist Max Brantley of the Arkansas Times, when asked about what his ethical considerations would be in a scenario where a document may be illegally obtained, says that he “would be hesitant to make a hard-fast judgment on that without knowing the facts and the circumstances.”
However, Brantley goes on to say “I don’t know that I would say with absolute certainty that with material improperly obtained, that I wouldn’t use it.”
Dr. Jonathan Groves, a career journalist and professor of communication at Drury University, says that “I always draw on ‘The Elements of Journalism’ from Bill Kovach and Tom Rosenstiel” when looking at ethical considerations.
Groves says that one of the key points in their book was “the discipline of verification,” as being a central aspect of good journalism. As such, he believes that any document received by a journalist should undergo thorough scrutiny to verify its validity and facts.
When it comes to the issue of a journalist publishing stolen information, Groves says “that’s a tough one,” and adds that he believes “you would have to think through the whistleblower idea, but if theft is involved I think that can be problematic” as it relates to journalism ethics.
Perhaps the most well-known case study in the last decade or so comes from the Edward Snowden case. Three journalists—Barton Gellman, Laura Poitras, and Glenn Greenwald—received highly-classified government documents from Snowden. The documents included information relating to the National Security Agency’s mass surveillance program and bulk data collection. They made the decision to publish the information, as they believed that it was crucial for the citizenry to know this information. Even though there are varying opinions with regard to Snowden’s actions, I believe that a fair assessment of this situation shows that it was appropriate for these journalists to release the information, so the public would be informed on the matter.
Two other notable instances of this type of situation are the “Panama Papers” of 2016 and the “Pandora Papers” of 2021. Essentially, the release of both of these documents contained information regarding offshore tax havens that many wealthy individuals use through the use of an “offshore services provider.” These documents, although obtained through unlawful means, were nevertheless printed by the Independent Consortium of Investigative Journalists (ICIJ). Again, I believe this is another case whereby journalists should have published the information, as it includes previously unknown facts that were otherwise not known to the public at large.
From a legal standpoint, 49 states and D.C. have adopted shield laws, most of which prevent journalists from being compelled to testify in a legal case or be forced to potentially turnover sources and materials. There have been efforts throughout the years to establish a federal shield law in order to set a uniform national standard and give more legal clarity regarding these types of situations. Richard Garnett, a law professor at the University of Notre Dame, who specializes in constitutional law and first amendment issues, says that “such a law would change the rule of the Branzburg v. Hayes case, and the general rule that reporters (etc.) are not entitled to more free speech protections than citizens generally.”
Still, in a 2017 article in NPR, Mary-Rose Papandrea, a University of North Carolina law professor and former Massachusetts ACLU board member, weighed in on the issue of press freedom litigation. She said that it’s less of a “guarantee under law” and instead “more of a historical fact” that a legal case implicating a journalist publishing stolen or illegally obtained material has not taken place.
There may be many controversies in the years to come with regard to the publishing of classified or stolen material. Journalism, unlike some other professions, is not necessarily confined to those with a certain set of credentials. Whereas doctors and lawyers have to obtain a specific degree in order to practice in their respective field, journalism is much more widely accessible. As such, this leads to many disagreements in the public sphere, regarding what constitutes journalism and who constitutes a journalist. The criteria for this is often ambiguous and are likely to continue to be in future years, due to the ever-increasing prevalence of citizen journalism, advocacy journalism, and other digital platforms, such as blogs. Brantley, of the Arkansas Times, says “we’re heading into some very complicated waters” due to the ever-changing media landscape.
He says that “everything I write now has a point of view, I’m essentially an editorialist. I do reporting, I use facts in what I write, but I draw conclusions” and says there is “no secret about it, I’m a liberal-oriented writer.”
But, in this new media paradigm, Brantley poses the question “if you have a point of view does that make you not a journalist?”
From a legal standpoint, “It is very difficult to identify/define a distinct category of “journalist” (or “press”), which is one reason why the law of the “Press Clause” is underdeveloped, compared to (say) the Speech clause,” says Garnett.
This nuance, over who exactly fits the mold of a journalist, has the potential to bring about complex legal cases over the publication of classified or stolen material, in the near future. An example of this can be found in the ongoing legal situation with Julian Assange, the founder of WikiLeaks. In 2019, the Trump administration charged Assange under the Espionage Act and attempted to extradite him to the United States—a process that has resulted in a still-ongoing legal battle. This situation is extremely complicated, as Assange is a divisive figure. He considers himself a journalist, while many others would undoubtedly contend otherwise. However, this case, along with other potential similar cases, has a lot of implications for the future of disseminating such stolen information.
Thus, it is important to separate one’s feelings on Assange himself from the broader ramifications on press freedom and free speech, which could inevitably result from any such prosecution. In a 2021 article in the publication “Just Security,” human rights attorney Jameel Jaffer argued early on in the Biden administration that the “Justice Department should drop the appeal and dismiss the indictment” as it “poses a major threat to press freedom not just here in the United States but around the world.”
Groves takes a different stance on this case, by saying “Is dumping a bunch of information out to the public journalism? I would argue it’s not” and that the “role that a journalist plays is verifying it and then helping provide context to it.”
Groves says he views WikiLeaks as “more of an electronic clearinghouse for supplied information.”
Brantley says he believes that “Julian Assange is just the tip of a giant iceberg in an era of the decline of conventional news sources and the rise of unconventional news sources.”
Regardless of one’s stance on WikiLeaks or Assange, it is clear that the future of a case like this one has the potential to alter the legal conceptions of press freedom in the United States.
Since the landmark New York Times v. United States case of 1971, there have been relatively few instances of press freedom cases making it to the highest court in the land. There are varying explanations for why this is the case. Garnett says that while there have been some high-profile legal cases in decades since, “the rule against (content-based) prior restraints of speech is pretty settled.” Thus, it is fair to conclude that any further cases would follow the established legal precedent of the aforementioned 1971 case.
In general, I think that journalists should use their own discretion on what to publish. At the same time, I believe that journalists should factor in the benefits of releasing such crucial information to the public when making this decision. This is why I concur that, as a whole, journalists should publish crucial information, regardless of how the information was obtained.