Strict Scrutiny for Journalists?

Should defense of the members of the press be subject to a review?

  • A version of this article first appeared on Small Wars Journal

Growing-up in the late 1980s, the memories of my early childhood in the Soviet Union straddle the vast gap between the narratives about the world I would receive from state-run media on the old black-and-white TV and the reality conveyed by my grandparents or overhead from other adults. The discrepancy was obvious early on when I noticed the unscheduled airing of Swan Lake inevitably corresponded with the death of some party apparatchik. Similar anodyne entertainment programs took the place of news coverage in the days leading up to the demise of the USSR. That the press would engage in underhanded tactics to divert attention from facts inconvenient to the regime was taken for granted. I only knew about the tanks in Moscow from my parents, who in turn heard by word of mouth. Everyone, in fact, knew, and yet the official media kept trying to cover-up the inevitable and the unavoidable, as if denial would result in reversal. It was clear even to a child that the “news” was a product of the ossified regime, yet the news anchors for these state-mandated programs were referred to as “journalists”.

Years later, when Russian journalists were being assassinated for doing the work of real reporters, I asked myself how the same word could be used to signify such disparate meanings and occupations.

The first time I found myself compelled to analyze journalistic coverage was as a teenager, as part of a Social Studies requirement to report on current global events. I was following the NY Times reporting on the Second Intifada, and for the first time grappled with the question of what constitutes “neutrality” and “objectivity” in journalism, whether coverage of a conflict could ever be truly unbiased, and whether reporting on the numbers of inciters and violent activists and civilians killed in a conflict is the sort of moral equivalency that undermines the idea of truly objective coverage. Can or should the reporter writing the story be a moral arbiter? Are there such instances where one is forced to take sides in order for the reporting to reflect the reality of the conflict, and not merely some formula that turns human drama into a farce by trying to fit it into some prescribed parameters?

Over time the crisis of journalism in the West incubated, grew, blossomed, and at last erupted with the closure of many local publications, the rise of the clickbait online outlets, and the elevation of citizen bloggers, the vanguard of journalism’s “democratization”. The financial crunch compels cutting corners to meet the demands of increasingly narrow reader or follower bases – frequently at the cost to objectivity, if not also credibility.

Information warriors are taking advantage of the Western media’s identity crisis to advance their own agendas. Without a formal declaration of war, battles are waged every day over the hearts and minds of the Western public. Information warfare “is a way of sharing, transporting, gathering, manipulating, destroying, or degrading information aimed at deceiving, disorienting, dismissing, discrediting, demoralizing, and ultimately, disarming the target. ” It is a military, intelligence, or a political tactic adaptable to modern day communications systems through technical as well as rhetorical and psychological strategies. Disinformation, propaganda, and character assassination campaigns are a few examples that often—but not always—overlap. Hacking electoral voting machines or sensitive government databases, leaking embarrassing emails, bamboozling the adversary with fake news, or attacking targets through bots via troll factories are all examples of information warfare in modern settings.

During the Cold War, while Western intelligence agencies struggled with physical barriers to smuggling information in and out of the Soviet bloc and other Communist spheres of influence, the Soviet Union successfully infiltrated Western institutions, academic circles, and mass media.

“Men who sincerely abhorred the word Communism in the pursuit of common ends found that they were unable to distinguish Communists from themselves. . . . For men who could not see that what they firmly believed was liberalism added up to socialism could scarcely be expected to see what added up to Communism. Any charge of Communism enraged them precisely because they could not grasp the differences between themselves and those against whom it was made.” ― Whittaker Chambers, Witness

Access to the West enabled authoritarian regimes to develop detailed knowledge of the West, which made it easier for them to recruit agents, infiltrate institutions, cultivate fellow travelers, and subvert society through disinformation campaigns (some of which have been remarkably successful).

Whether during the Cold War or today, free, open, liberal democratic societies are at an inherent disadvantage when it comes to the playing field and flow of information. That disadvantage is now amplified by the priority Authoritarian regimes place on recruiting agents and their high risk tolerance. The United States, for example, reserves cyber strikes to be defensive or retaliatory, whereas countries like China, Iran, and Russia directly and indirectly launch cyber strikes as part of their campaigns of fear, espionage, and/or active measures. Foreign, repressive regimes have been so successful in their information warfare tactics that they have managed to co-opt the outlets dedicated to giving hope and strengthening the voices of liberal opposition movements. Recent reports uncovered the role the US Government funded Voice of America plays in amplifying and giving platform to Chinese propagandists. In the past few years, Iranian dissidents have accused Voice of American Persian of reflecting regime talking points and suppressing opposition voices. This is highly ironic given the essential role VOA and other such programs played in disseminating real news behind the Iron Curtain. For my grandparents, huddling over their radio to covertly catch a VOA broadcast was a breath of fresh air amidst the heavy-handed and monotonous Soviet State reporting.

Part of the problem with this seeming cognitive dissonance is in defining the word “journalist.”

What is, then, a “journalist”?

A common definition is “the activity or profession of writing for newspapers, magazines, or newswebsites or preparing news to be broadcast.” In other words, there is nothing sacrosanct about the definition or the act of the profession. That certain schools of thoughts have imbued journalism with best practices and professional ethics does not mean that those practices or ethics are universally adopted and applied, or even consistently applied, enforced, and appreciated even in societies with full freedom of the press.

In other words, the value of journalism is its in the values each practitioner brings to the table and whether it provides content of interest and value to the audience. Arguably, even clickbait can provide value for those who appreciate that sort of thing, and even disinformation could be of interest to professionals studying information warfare. But is deliberately false or deceptive information propagated by groups or foreign governments with specific agenda, potentiall at odds with the interests off or harmful to their target audiences of same interest and value than other kinds of information? And what about the people employed in dissemination of such information?

Over time our conflation of practitioners and the general idea of the press with the highest values of journalism and press US Constitution protects to a near absolute degree (with the exception of defamation, incitement to violence, fraud, and dissemination of child pornography and other illegal content) has reached a point where the letter but not the spirit of these protections is observed and adopted. The profession and anyone who claims to represent it become the only standard-bearers evaluating their own industry and who gets to make claims to its representation. Unlike bar and medical associations, there is no oversight that would ban or exclude violators of journalistic ethics from practices; indeed, there is more incentive for the industry insiders to protect than to evaluate and assess each other’s delivery.

Various organizations formed to protect journalists from political persecution unwittingly have become tools in the hands of professional manipulators and information warriors in the cause of muddying waters and giving the cover of protection to those who are actually degrade press freedom, freedom of speech, and serve the agenda of disinforming and indoctrinating target audiences. At the same time, however, the erasure of boundaries between accepting political operations as legitimate media activity both by the press at large and the institutions that have adopted the mantle of protecting freedoms leads to greater distrust among the public in the mainstream press and sources of information, and to less respect and concern for journalists. The Committee to Protect Journalists declares China, Turkey, Saudi Arabia, and Egypt to be among the world’s leading jailers of journalists. But is a journalist who runs afoul of the CCP trying to report on COVID-19 the same as a Muslim Brotherhood “journalist” trying to spread their own viral ideology?

CJP was at the forefront of campaigns on behalf of Jamal Khashoggi, who is widely hailed as a “journalist,” but whose real job was closer to political operative. Thus he was acting as a foreign influence agent, rather than merely a journalist critical of his own government, and was using his pen to take part in political campaigns and intelligence work rather than any real “exposure” or good faith investigation that landed many journalists in hot waters in Turkey, and other countries. The reality of the case is likely far less dramatic than that: far from being an innocent columnist abroad, Khashoggi, was a conduit for plagiarized Qatari Propaganda. He was copying and pasting stories in Arabic provided to him by a former Foreign Officer working with Qatar Foundation International in the US had his Washington Post editor Karen Attiah essentially transmitting plagiarized anti-Crown Prince stories presented as an original work for the Post. Khashoggi’s work and the work of other ex Saudi dissidents colored Saudi Arabia’s transition from a Muslim Brotherhood supporting Mohammed bin Naif to the reformist Mohammed bin Salman (who apparently cut off much of the support Western media enjoyed under his more conservative predecessors), while playing to various Western factional interests in intelligence agencies and the press.

Khashoggi’s death was framed in the context of a character assassination campaign in which MBS was maligned as an authoritarian leader who uses cyberespionage, information warfare, and even abduction and murder to silence dissent and critics all over the world. When this narrative fell apart for lack of evidence, no publication formally retracted their contemporaneous contributions to that choir.

The treatment of Khashoggi was also incongruous given the treatment of investigative journalists and reporters who have been assaulted, imprisoned, and assassinated, but achieved nowhere near the notoriety, perhaps because they had the misfortune of focusing or suffering at the hands of Russia, Iran, Turkey, or China.

Should state mouthpieces be venerated with equal fervor to courageous muckrakers shown to be risking their lives in uncovering government corruption? Is every blogger with an opinion entitled to the same level of credibility as experienced veterans with a proven record of veracity? Can we, in other words, separate our interest and dedication to freedom of speech and press and protection of the marketplace of ideas from the representations of the profession? Citizen journalists can play an indelible role in exposing newsworthy conditions on the ground, but they can also be duped by political operatives staging AstroTurf demonstrations. Without experience, funding, or motivation to do additional digging, these reporters can inadvertently misinform the public.

What about lazy reporters or go-along-to-get along types inadvertently disseminating “fake news” and agendas for various actors, whose poor professionalism is manipulated with skill by those who track reporters’ careers and work professionally? How about wannabe political operatives who fail to see the difference between reporting, opinion writing, and political advocacy so long as they claim to advance the ”public good”? While the role of the press in protecting their colleagues abroad is paramount, increasingly it is less clear whom exactly they are protecting and from what. If, in certain countries, the press consists largely of state-appointed apparatchiks, operatives, or worse still, undercover intelligence officers, should we be expanding our resources, compassion, and righteous outrage to battle for the extraction of such “journalists” from prisons in the event they displease their masters? Should Westerners entangle themselves in battles abroad where “journalism” is a mere cover for various operations?

Should the defenders of press freedom in the West not take into account that defending and intervening on behalf of deliberately antagonistic voices will end up empowering counter reformist movements in Saudi Arabia and other Arab states? Such movements could bring back the more oppressive and conservative governments who in the past employed people like Khashoggi to censor more liberal perspectives? True humanitarians would at least give the matter a passing thought; certain circles who find themselves behold to past relationships with these authoritarian elites should then be honest with themselves and the public that their true aim is financial or political self-interest, and concern about Saudi Arabia’s resurgence in international politics as a leading actor. None of these considerations have anything to do with press freedom or protection of journalists dedicated to exposing corruption and bad practices. Indeed, not an iota of the same attention has been devoted to disappeared Chinese journalists or assassinated Russian investigative reporters. Is it because there is less investment or hope for undermining Russian or Chinese regimes than of taking advantage of chaos in a potentially upended Saudi society where a young, inexperienced leader, could be forced to step down or be tied down by the sheer weight of bad media publicity?

The answer lies in the widespread media reaction to the Chinese Communist Party’s role in the spread and cover up of the corona virus COVID-19 pandemic. Many of the very same journalists who had been attacking Mohammed bin Salman over Khashoggi through in an endless stream of coverage came to China’s defense on many fronts: in condemning the use of the #WuhanVirus hashtag campaign to highlight the cover-up of the outbreak, in attacking calls to divest from China in light of its abysmal practices that have come to threaten all of the world, apart from its own long-suffering population, and the critiques of WHO, which appears to have taken cues from China’s cover-up in denying or minimizing the nature of the pandemic and downplaying early best practices for combating it. These same actors have likewise failed to give mea culpas following the debunking of the Steele dossier, nor have acknowledged that in the process of what appears to have been a Russian “witch hunt” to take down the President, they themselves have fallen victims to Russian hoaxes and narratives propagated by an adversarial intelligence agency in a successful effort to take advantage of political polarization in the United States.

In other words, what kind of journalists get the bulk of our defense strongly depends on who defines journalism, and if the defenders of press freedoms are themselves neither journalists in the true sense of the world, nor free nor independent in that they are beholden to ulterior motives and agendas driven by hidden “clients” and “customers”, domestic or foreign, the entire concept becomes an unfortunate farce that is hard to take seriously. A mockery made out of a legitimate defense of important rights ends up increasingly lying hollow to the public and fails to generate anything but cynical and exasperated responses. Still more unfortunate that these standards are applied haphazardly, when violations of press-related freedoms in the West are overseen under the guise of political correctness or out of old colonialist mindset that Western countries are by definition above and beyond scrutiny on issues related to freedom of the speech.

The suspect defamation standards in UK and France, the Holocaust denial limitations in Germany, Austria, and other countries, the hate speech concerns on US campuses and in various private publications are all issues that should be vigorously debated and criticized, because such limitations ultimately erase basic freedoms and ultimately pave way to creeping authoritarianism, serving best Muslim Brotherhood an assorted dictatorships seeking to rebuild Western Societies in their own image by taking advantage of the excess of concern for various protected groups’ feelings and unwillingness to face and ignore offense.

So long as the Western press is willing to ignore, dismiss, overlook, or excuse away attacks on journalistic freedoms in the West, there is little hope of any real protections ever being successfully extended to less open societies. Why should anyone take seriously professions or their representatives who are not fully committed to their own principles in all contexts and who appear nothing more than self-righteous finger-wagging virtue signaling hypocrites when it comes to addressing serious issues

Ultimately, the answer may lie in separating the protection for the standards we value from adopting the defense of individual practitioners as a cause. While no regime or terrorist organization should get away with human rights abuses even against equally dangerous political factions, ultimately it is not the job of those concerned about press freedom and journalism from getting involved in internecine faction battles, unless at the very least they are honest enough to specify that they are speaking out against extrajudicial assassinations of anyone in any capacity, rather than defending “journalists”. But that would also mean acknowledging a disturbing mission creep that that takes these media bodies far afield from their areas of concern and expertise. As with the three levels of constitutional review and scrutiny in the United States – the rational-basis review, intermediate scrutiny, and strict scrutiny – organizations and consortia tasked with evaluating

cases of journalist persecution should develop strict criteria of review to protect their own credibility and to ensure public trust, investment, and interest in the campaigns concerning these cases. Furthermore, they should more clearly define their positions concerning defending freedom of speech and press qua freedom, rather than using this line simply to pick – often ineffective and solipsistic – battles with governments and regimes they disagree with.

Rational-basis review: Hostile actions, such as disinformation or other media influence campaigns, by foreign agents or individuals funded or affiliated with foreign governments or other political agendas, present a potential security threat to the public and are political operations, rather than journalism. While individuals engaged in these actions should still be defended from arbitrary abuse by other regimes, there is no rationale for expending influence and public attention for defending foreign disinformation efforts or people who represent such agendas.

For instance, RT, TRT, Xinhua news, and Al Jazeera have engaged in both foreign agency and political operations, as well as hostile activity and disinformation having little to do with value of the press or freedoms. Does it make any sense for committees concerned about journalists and journalism to defend political operatives operating under journalistic cover and fully funded by their government in cases when they are detained or deprived of their license in some other state? At the same time, that arguably could put reporters working for US-funded outlets such as Al Hurra and Radio Liberty, at risk given that such stations carry a clear political agenda and are likewise funded by the US. However, if they do not carry an implicitly subjective propagandistic value that serves to decrease press freedom in other countries, nor carries false or inciting information to the public, arguably reporters for such outlets have value.

Intermediate Scrutiny: Intermediate scrutiny would include journalists employed by state-funded agencies who may have some level of bias or professional shortcomings in coverage but who do not engage in outright fabrications and overall carry some level of discernible informational or opinion value. Even columnists operating within censorship limitations can be of interest as long as it is made clear to the public whether they have any kind of affiliation indicating implicit bias or whether their columns are little more than regurgitated government talking points. So long as the journalists are operating in some level of good faith and do bring some level of value to their work, they deserve at least some level of protection.

Strict Scrutiny: Would apply to anyone, whether a professional trained reporter or a blogger, who is operating in good faith, bringing obvious value in reporting, investigative journalism, or commentary, who is committed to clear professional standards (even if s/he does not always have the skills or the capacity to follow through to the full extent but has been making reasonable and consistent effort in that regard), and who is endangered as a result of providing that value in that professional capacity

In the meantime, it is worth reviewing who gets to be treated as a “journalist” in the United States and other Western countries. What was once lauded as a profession for truth seekers, increasingly seems to be coming a closed elitist club where only those sharing common views concerning various events and political agendas have a place. Part of it may be due to the increasing pressure to appeal to narrow and specific audiences, but the overall polarization in the Western societies reflects in the quality of the media, driving more and more writers away from independent thinking and a position of skepticism and towards whatever has demand and can pay bills, even if it means engaging in little more than groupthink exercises that pleases investors, donors, or subscribers.

Indeed, it is becoming increasingly obvious that with the exception of some controversial truth-tellers, the main body of Western journalists is dedicated to retaining reputation in close-knit cliquish circles and access to those who can give them exposure and easy feed to news stories and controversies, rather than to seeking and uncovering unpopular realities that can put them at risk of disfavor with those are pulling the strings.

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