With the Justice Department investigating Newscorp, it was only a matter of time before conservatives started closing ranks around embattled CEO Rupert Murdoch. Fox News went as far as pretending Murdoch outlets were victims rather than perpetrators of phone hacking, while the Wall Street Journal now pretends the First Amendment is at stake:
We also trust that readers can see through the commercial and ideological motives of our competitor-critics. The Schadenfreude is so thick you can’t cut it with a chainsaw. Especially redolent are lectures about journalistic standards from publications that give Julian Assange and WikiLeaks their moral imprimatur. They want their readers to believe, based on no evidence, that the tabloid excesses of one publication somehow tarnish thousands of other News Corp. journalists across the world.
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The last time the liberal press demanded a media prosecutor, it was to probe the late conservative columnist Robert Novak in pursuit of White House aide Scooter Libby. But the effort soon engulfed a reporter for the New York Times, which had led the posse to hang Novak and his sources. Do our media brethren really want to invite Congress and prosecutors to regulate how journalists gather the news?
The comparison to Assange is a red herring. Assange may have published secret information, but he did not leak it himself. Just as few dispute the idea that the government has the authority to punish leakers, there’s no question that the government has the authority to prosecute phone hackers under the Computer Fraud and Abuse Act. Leaking however, is inherently relevant to newsgathering, particularly when whistleblowers are doing the leaking, whereas hacking the phones of private citizens is not. Unlike with Assange, whose prosecution could set a precedent that could be used to prosecute journalists for publishing information the government would prefer be kept secret, prosecuting those involved in hacking the phones of American citizens would simply discourage reporters from illegally invading people’s privacy. Laws against phone hacking don’t “regulate news gathering” any more than laws against burglary.
More specifically, the WSJ frets that if payments to British security officials are prosecuted under the U.S. Foreign Corrupt Practices Act, then news organizations that pay people for scoops could face prosecution as well. I actually think there’s something to this, but it all depends on what DoJ decides to do.
But depending on the charges that are ultimately filed (if charges are filed) there’s nothing inconsistent between investigating Newscorp and opposition to prosecuting Assange. Of course, the Wall Street Journal editorialized some time ago that Congress pass a law that would allow Assange to be prosecuted, and called for leakers to face the death penalty:
One alternative would be for Congress and the Administration to collaborate on writing a new statute aimed more precisely at provocateurs like Mr. Assange. At a minimum, the Administration should throw the book at those who do the leaking, including the option of the death penalty. That would probably give second thoughts to the casual spy or to leakers who fancy themselves as idealists.