“Who watches the watchmen”? That question from a federal judge this week came in a confrontation with the Justice Department over its targeting or charging journalists. At issue is the prosecution of a controversial host of a far-right website called Infowars. Owen Shroyer was charged with trespass and disorderly conduct during the Jan. 6th riot. However, Shroyer claims to have been present as a journalist while the Justice Department insists that he is an activist. When US Magistrate Judge Zia Faruqui asked for the basis of that distinction, the Biden Administration refused. The conflict exposes the problem with new regulations protecting journalists without clearly defining who is a journalist.
Recently, news reports of the Biden Administration targeting journalists in criminal investigations led to congressional hearings and a new policy that Attorney General Merrick Garland promised would protect the journalists in the future. I testified before the House Judiciary Committee on how this was just the latest in such controversies extending from the Clinton to the Biden Administrations. As I wrote on these pages at the time, the most glaring flaw is the continued failure to define who is a journalist. Without such a definition, the new reform is as worthless as the long litany of prior reforms.
Shroyer was arrested on charges of trespassing and disorderly conduct on the Capitol grounds. Prosecutors also alleged that he violated an agreement not to engage in such conduct after he was removed from a 2019 impeachment hearing for heckling a Democratic lawmaker. Shroyer was openly advocating for the protest and the underlying view that the election was stolen. He marched with a crowd toward the Capitol shouting, “We aren’t going to accept it!” However, he insists that he entered the Capitol to report on the events for Infowars.
Under the Justice Department guidelines, the attorney general must approve the investigation or charging of a member of the news media with a crime. That led Judge Faruqui to ask the obvious question of whether the guidelines were followed or whether the Biden Administration simply refused to recognize Shroyer’s claim of journalistic status. The judge noted that “The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.”
The Justice Department however simply defied the court and said the regulations were “scrupulously followed,” but refused to explain how the guidelines were satisfied. John Crabb, head of the Criminal Division of the US attorney’s office in D.C., wrote “[s]uch inquiries could risk impeding frank and thoughtful internal deliberations within the Department about how best to ensure compliance with these enhanced protections for Members of the News Media.”
Faruqi was not satisfied by such refusals and noted “the Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen.”
The court’s inquiry highlighted the fact that the earlier pledge is worthless without some ability to review such decisions and, most importantly, some definition of those protected by it.
It is not just the Justice Department that is discomforted by the question. The media itself is equally uneasy. As with the status of Julian Assange, the media would prefer not to address the distinction between Shroyer and other advocates in the media.
Newspapers like the New York Times have rallied around journalists like Nikole Hanna-Jones who have declared “all journalism is advocacy.” She is now going to teach journalism at Howard University and other academics are encouraging the abandonment of traditional views of objectively and neutrality in the media. Stanford journalism professor, Ted Glasser, insisted that journalism needed to “free itself from this notion of objectivity to develop a sense of social justice.” He rejected the notion that the journalism is based on objectivity and said that he views “journalists as activists because journalism at its best — and indeed history at its best — is all about morality.” Thus, “journalists need to be overt and candid advocates for social justice, and it’s hard to do that under the constraints of objectivity.”
Once you discard objectivity, the rest is easy. Schroyer was an “overt and candid advocate” but he was not deemed an “advocate for social justice.” Thus, advocacy on sites like Infowars or Fox News is not real journalism, because it is false or “disinformation” while advocacy on sites like the Daily Kos or CNN is based on truth.
Reporters not only now define what is true but can actively protest against those with opposing views. Recently, National Public Radio made it official and said that, for the first time, its journalists will be allowed to actively participate in protests. However, NPR will pick the causes that journalists can openly join. The rule allows reporters to become protesters for causes that support “the freedom and dignity of human beings, the rights of a free and independent press, the right to thrive in society without facing discrimination on the basis of race, ethnicity, gender, sexual identity, disability, or religion.” Two examples of worthy causes offered by NPR are Black Lives Matter protests and Gay pride protests. It is doubtful that NPR would view pro-life or pro-police protests to fit that vague definition. Like the Justice Department, it reserves to itself to state which causes are worthy and which are unworthy.
Advocacy in the media is now rampant. Indeed, the White House regularly promotes the views of media figures like MSNBC’s Joy Reid and the Washington Post’s Jennifer Rubin who have been long criticized for their blind advocacy of pro-Democratic and anti-Republican causes. They would likely be protected under the Justice Department rules. Even when they are proven false in their assertions, they are treated as media advocates for the truth.
Advocacy reporting is the new touchstone of the journalistically woke . . . unless, that advocacy is for conservative causes or groups. I do not agree with Shroyer any more than I agree with Reid. However, they are both engaged in what is now celebrated as advocacy journalism. It is bad enough to witness the demise of traditional journalism but the Shroyer case may foreshadow an even worse future where only certain forms of advocacy will be allowed. As with NPR, what is being advocated will determine who is still a journalist. That will bring the movement of advocacy journalism to its inevitable end, leaving only advocacy in the wake of journalism.
Reprinted with permission from JonathanTurley.org.