2011-07-18 The Wall Street Journal's First Amendment Hypocrisy

Late last night, the Wall Street Journal published a flailing, desperate editorial, attempting to tamp down the hacking scandal that has engulfed its owner Rupert Murdoch for the past two weeks. In a classic case of blame deflection, the paper took shots at several news organizations on both sides of the Atlantic that are not owned by News Corporation. But lost in the mire of attempted score settling and self-pity is the paper’s incredible stance on WikiLeaks and the First Amendment, which reeks of hypocrisy, and should not be left without a response.

The editorial, of course, does not dispute any of the facts in the hacking scandal investigation, which has been spearheaded by The Guardian and its intrepid reporter, Nick Davies. Instead, the Journal questions what’s driving The Guardian and its ilk, and then declares anything The Guardian has to say about journalistic ethics is null and void because it published, or partnered with others who published, documents leaked to WikiLeaks.

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.

This argument would also, of course, discount other papers’ comments on “journalistic standards,” including the Washington Post and the New York Times.

But despite its constant barrage of criticism towards Julian Assange, the Wall Street Journal has published countless stories using the same material The Guardian has. And the source for that material? WikiLeaks.

A small sample:

“Leaked Papers Show Arab Leaders Critical of Iran, Neighbors,” Nov. 29, 2010

In a Feb. 9, 2009, cable sent by U.S. Ambassador to Egypt, Margaret Scobey, to Secretary of State Hillary Clinton, Ms. Scobey writes that Egyptian President Hosni Mubarak "has a visceral hatred for the Islamic Republic, referring repeatedly to Iranians as 'liars.' "

“In Cable, Ukranian Tycoon Speaks of Mafia Ties,” December 2, 2010

A Ukrainian gas tycoon admitted to ties to alleged mafia boss Semyon Mogilevich in a conversation with the U.S. ambassador to Kiev in 2008, according to a U.S. diplomatic cable published by WikiLeaks.

US Cable: China Ordered Google Hacked,” December 5, 2010

One cable noted that Google's announcement early this year that it would stop cooperating with Chinese censorship regulations "presented a major dilemma" for the Chinese government because it made Google more interesting and attractive to Chinese Internet users, like "forbidden fruit." It also said accusations made at the time by Chinese authorities that Google was working with the U.S. government to undermine the Chinese government were part of a strategy to "appeal to Chinese nationalism."

“WikiLeaks Touches Shell,” December 10, 2010

Royal Dutch Shell PLC feared it could lose the bulk of its oil-license acreage in Nigeria after the country's new Petroleum Industry Bill is passed, according to one in a series of diplomatic cables that offer glimpses into the intersection between business and politics in Africa's biggest oil producer.

“Morocco Joins in, Defying Predictions,” February 21, 2011

“But as elsewhere in the Middle East and the Maghreb, a younger generation is demanding systemic change. If granted, it would transform the distribution of power in this nation of 32 million, stripping influence from what a U.S. diplomat described as Morocco's "monarchical autocracy" in a 2008 U.S. State Department cable published by WikiLeaks.”

“US Told Canada It Wouldn’t Curb Aircraft Airport Subsidies,” April 28, 2011

Canadian officials warned their U.S. counterparts in the fall of 2009 that Canada's Finance Minister Jim Flaherty would "go ballistic" if the country supported Washington's request to curb government-backed export financing that supported Bombardier Inc.'s (BBD.B.T) aircraft sales, U.S. diplomatic cables made public Thursday by WikiLeaks said.

“US Criticized Tokyo’s Nuclear Plan,” May 9, 2011

A series of cables released by WikiLeaks shows U.S. officials repeatedly prodded their Japanese counterparts to beef up security—and were regularly rebuffed.

“Mideast Uses Western Tools to Fight Skype Rebellion,” June 1, 2011

Skype also is a favorite among activists in Saudi Arabia and Vietnam, according to State Department cables released by WikiLeaks.

“Mexican Politician Detained on Gun Charges,” June 5, 2011

A 2009 WikiLeaks cable signed by the U.S. consul in Tijuana says "Hank is widely believed to have been a corrupt mayor and to be still involved in narco-trafficking." The cable recounts how Baja California state police refused to follow an alleged drug trafficker who took refuge in Mr. Hank's Tijuana dog racing track, right across from the consulate. "There are still plenty of safe havens for organized crime in the border region," the diplomatic cable says.

“Sizing Up Economy Isn’t As Simple As Studying GDP,” June 14, 2011

The release last year of U.S. diplomatic cables by WikiLeaks has added further fuel to the fire. Records of a 2007 conversation between China's Vice Premier Li Keqiang—then the party secretary of Liaoning province—and U.S. Ambassador Clark Randt revealed that Mr. Li had little faith in the GDP data, at least at the provincial level.

The list goes on.

And if that underhanded attempt to shoot the messenger weren’t enough to make you question their moral imprimatur, the Journal then tries to justify News Corp’s alleged lawbreaking by hiding behind the First Amendment.

In braying for politicians to take down Mr. Murdoch and News Corp., our media colleagues might also stop to ask about possible precedents. The political mob has been quick to call for a criminal probe into whether News Corp. executives violated the U.S. Foreign Corrupt Practices Act with payments to British security or government officials in return for information used in news stories. Attorney General Eric Holder quickly obliged last week, without so much as a fare-thee-well to the First Amendment.

Then, after denouncing a possible expansion of the Foreign Corrupt Practices Act’s reach, the Journal sets up an irrelevant strawman:

Applying this standard to British tabloids could turn payments made as part of traditional news-gathering into criminal acts. The Wall Street Journal doesn't pay sources for information, but the practice is common elsewhere in the press, including in the U.S.

Yes, making it a crime for journalists to pay for stories would be an encroachment on the First Amendment. Except no one is arguing for that. The allegation against News Corporation is a bribery scheme to pay hush money to police officers so its journalists could continue their alleged hacking spree, despite literal stacks of evidence in the police’s possession indicating laws were routinely broken. From yesterday’s New York Times:

Inside [Scotland Yard] was a treasure-trove of evidence: 11,000 pages of handwritten notes listing nearly 4,000 celebrities, politicians, sports stars, police officials and crime victims whose phones may have been hacked by The News of the World, a now defunct British tabloid newspaper.


During that same time, senior Scotland Yard officials assured Parliament, judges, lawyers, potential hacking victims, the news media and the public that there was no evidence of widespread hacking by the tabloid. They steadfastly maintained that their original inquiry, which led to the conviction of one reporter and one private investigator, had put an end to what they called an isolated incident.

It turns out the police had evidence that over 4,000 phones were hacked. The News of the World was paying Scotland Yard, not for news scoops, but to keep its journalists out of jail. Last time I checked, the First Amendment wasn’t a defense for corruption.

The Journal then breaks out the slippery slope argument, saying an attack on News Corporation is an attack on all journalists:

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?

Certainly, no one wants to invite Congress and prosecutors to regulate how journalists gather the news. Yet the Wall Street Journal invited two members of Congress to call on prosecutors to investigate WikiLeaks under the Espionage Act, which would create new precedent in that very area. A prosecution of WikiLeaks for publishing classified information would open the Wall Street Journal to investigation of legitimate journalism like their investigation into the CIA’s role in Pakistan, which contains highly classified, yet newsworthy, information.

Even if Assange is never convicted, the investigation into WikiLeaks surely has the potential to engulf other reporters. Yet despite the Journal’s professed concern for journalistic freedom, it has printed editorial after editorial calling for Julian Assange to be thrown in jail.

Twenty years ago, long before he established WikiLeaks, Julian Assange was investigated, and later arrested and sentenced for hacking. Twenty years ago, Rupert Murdoch was one of the world’s most well known publishers with a penchant for setting the news agenda and a flair for the dramatic.

My, how the tables have turned.

Trevor Timm is the curator of the @WLLegal Twitter account, which aggregates and analyzes news on WikiLeaks and US law.

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