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Defence arguments in the trial of former Army private Bradley Manning — who stands accused of a number of crimes for handing over classified documents to WikiLeaks, including a charge of “aiding the enemy” — finished Wednesday with testimony from Harvard law professor Yochai Benkler, who faced a number of questions from the judge and the prosecution about whether WikiLeaks is a media entity or not. Benkler’s answers highlighted some of the most contentious aspects of the trial, which in turn raise questions about what journalism and the media consist of in a networked age, and how we protect them.

Xeni Jardin, who writes for Boing Boing and is also a board member of the Freedom of the Press foundation (which has helped raise money for a number of public-interest journalism entities, including WikiLeaks) posted some details of Benkler’s testimony on Twitter, and it’s clear even from these snippets that both the judge and the prosecution were trying to figure out whether WikiLeaks was a journalistic vehicle much like a newspaper — and therefore deserving of some protection — or a lawless entity engaged in, or at least friendly to, terrorism. (A full transcript of Benkler’s testimony is here).

Advocacy and journalism

At one point, the prosecuting attorney — Capt. Joe Morrow — asked Benkler whether he would agree that “mass document leaking is inconsistent with journalism,” to which the Harvard professor said: “No, why would I agree with that?” Later, the prosecution tried to argue that WikiLeaks is not a journalistic entity because it has a political agenda: Morrow asked Benkler how one could tell the difference between a journalistic organization and one whose goals were political, and Benkler responded that the two are not mutually exclusive, noting that media outlets like Fox News have a “political perspective.”

Benkler: They're not always mutually exclusive. The Nation, Fox News, some have a political perspective & context for what news they follow. — Xeni (@xeni) July 10, 2013

A similar criticism has been made about Guardian writer Glenn Greenwald and his reporting about the NSA surveillance program known as PRISM, which is based on documents leaked by former CIA contractor Edward Snowden. Some — including a number of traditional journalists — have suggested the Guardian writer is not a “real” journalist because he is a blogger who advocates a political viewpoint rather than remaining objective.

As I pointed out in a post about Greenwald, the debate over whether he is a journalist is important because there’s a perception that journalists and traditional media entities have special protections under the law, and so those who are critical of the Guardian writer — and those who want to convict Bradley Manning of “aiding the enemy” for giving classified documents to WikiLeaks — are trying to define journalism in as rigid a way as possible so their targets aren’t protected.

Benkler: “All the news that's fit to print” —which implies political neutrality—is one model of journalism but it's not the only one. — Xeni (@xeni) July 10, 2013

The problem of defining who is a journalist

What this ignores, however, is something Benkler suggested in his testimony: namely, that there is no hard and fast dividing line between something that is a media or journalistic entity and something that isn’t. At one point, the judge asked whether “the fourth estate now includes bloggers,” and wondered whether anyone in the gallery at the trial — if they published information on a blog — would qualify as a journalist. Benkler’s answer: “That’s a hard line to draw. This is what’s problematic about defining the limits of reporters privilege. It depends.”

The Harvard professor then argued that the charge of “aiding the enemy” laid against Manning for simply providing documents to WikiLeaks doesn’t make much sense (the defence has asked the court to have this charge dropped due to lack of evidence). If a classified document is published on a website where theoretically an “enemy” can read it, does that mean publishing it somehow aids the enemy? If so, that would theoretically implicate the entire internet, not to mention every traditional media outlet.

“If any leak to media org is published online, where conceivably an enemy can access, it's aiding the enemy? That can't be correct.”—Benkler — Xeni (@xeni) July 10, 2013

Although Benkler didn’t get into it in his testimony, the protections that journalists and media outlets are supposed to have under the law are also problematic at best — and always have been, although WikiLeaks and the Manning trial have focused more attention on the topic. The fact is that there is no explicit protection for journalists under U.S. federal law, which is why some legislators continue to argue for a so-called “shield law.” But that in turn would require defining who is a journalist and who isn’t, which raises a host of troublesome issues.

WikiLeaks and the “networked fourth estate”

The only real protection for the media is the First Amendment, which says nothing at all about traditional media or journalism or what they consist of, but simply protects a “free press.” This makes it even harder to argue that “real” journalists somehow have legal protection but bloggers or alternative media entities like WikiLeaks don’t. At least one judge has examined the logical extension of that as it applies to the web and to bloggers, saying in a 2011 decision that:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

Benkler looked at these issues as they apply to WikiLeaks in a fascinating paper he wrote for the Harvard Civil Rights Review in 2011, entitled “A Free and Irresponsible Press,” in which he argued that the First Amendment and its protections should apply to WikiLeaks just as clearly as they apply to the New York Times, saying: “As a matter of First Amendment doctrine, Wikileaks is entitled to the protection available to a wide range of members of the fourth estate, from fringe pamphleteers to major press organizations.”

What the Manning court thinks of Benkler’s arguments about how WikiLeaks fits into what he calls the “networked fourth estate” — and whether they will affect the judge’s decision on the “aiding the enemy” charge in particular — remains to be seen. The trial continues next week with prosecution arguments.

Post and thumbnail images courtesy of Flickr user Caroline Georgatu