Should freedom of the press shield WikiLeaks?

Glenn Greenwald, the ne plus ultra of critics of what he calls the “surveillance state” -- and of the Obama administration’s anti-terror tactics -- is accusing Sen. Dianne Feinstein (D-Calif.) of being hostile to “basic press freedoms.” Greenwald’s evidence consists of Feinstein’s statement to an Australian newspaper that WikiLeaks founder Julian Assange should be prosecuted under the Espionage Act.

“To see how hostile Feinstein is to basic press freedoms, [Greenwald writes] permit me to change ‘Assange’ each time it appears in her statement to ‘The New York Times.’ ” Greenwald’s rewrite of Feinstein’s statement goes like this:

“I believe [The New York Times] has knowingly obtained and disseminated classified information which could cause injury to the United States,” the chairwoman of the Senate Select Committee on Intelligence, Dianne Feinstein, said in a written statement provided to the Herald. ”[It] has caused serious harm to US national security, and [it] should be prosecuted accordingly.”

But is the substitution appropriate? Does WikiLeaks stand in the same position as the New York Times (which printed some of the classified material obtained by Assange’s group)? It’s an interesting question with implications for, of all things, the debate over the Supreme Court’s Citizens United ruling on campaign spending.

At least since the Pentagon Papers case, legal scholars and journalists have debated whether the freedom of the press guaranteed by the Constitution is simply freedom of speech for the press (that is, for printed material) or a broader, institutional privilege. The most famous advocate of the latter view was the late Supreme Court Justice Potter Stewart, who in a 1974 lecture said that “the free press clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection.”

Stewart was a little mysterious about how the “institutional” protection of a free press would play out, but the idea that the 1st Amendment protects an institution obviously raises the question of how that institution is defined and demarcated: Is WikiLeaks part of that institution? It could make a big difference. The Justice Department has been reluctant to prosecute traditional news organizations under the Espionage Act.

In fact, “the press” receives lots of protections mere citizens don’t enjoy. Although the Supreme Court has declined to hold that the 1st Amendment protects journalists’ right to conceal confidential sources, both Justice Department guidelines and state “shield” laws provide some protection for confidentiality -- but only for journalists. Before it was struck down by the Supreme Court in Citizens United, the McCain-Feingold law prohibited corporations from certain “electioneering communications” -- but provided an exemption for media corporations.

The Potter Stewart “institutional” approach to press freedom has a lot to recommend it, but it also creates winners and losers -- or rather, it allows Congress, state legislatures and courts to decide who or what is “the press.” So Greenwald might think “WikiLeaks” and “the New York Times” are interchangeable, but Feinstein doesn’t have to agree.

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