No, Glenn Greenwald cannot be the one who decides what stays secret

This Sunday, The New York Times Book Review will finally print Michael Kinsley's review of Glenn Greenwald's No Place to Hide, two and a half weeks after the review was published online and provoked a polarizing debate involving Greenwald, the Times' Public Editor Margaret Sullivan, Kinsley again, and countless commentators who promptly took sides in the dispute about government secrecy and freedom of the press.

Some readers, including Sullivan, objected to Kinsley's smart-alecky tone and psychological sketches of Greenwald, Edward Snowden, and Julian Assange, which these critics saw as bordering on ad hominem attacks. But there were also more substantive criticisms levied by Sullivan and many others, most of them boiling down to the claim that it was simply outrageous of Kinsley to deny journalists an absolute right to print classified material passed on to them by leakers.

Here is the most controversial passage from the review:

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Some objected to this passage because they thought it contradicted another line of the review in which Kinsley called the Snowden leaks a "legitimate scoop." But for most critics, the issue was far more fundamental: How dare anyone suggest, and in the pages of America's newspaper of record no less, that the government, and not an intrepid journalist like Glenn Greenwald, should get to decide, while wielding threats of prosecution and imprisonment, what information is secret and what is not?

Clearly, the critics implied, Kinsley was expressing a deep-seated sympathy for authoritarianism that no self-respecting American citizen, let alone a journalist professionally and existentially devoted to the press freedoms enshrined in the First Amendment, could possibly endorse.

There's just one problem with this objection: Kinsley was almost certainly correct.

In the ensuing debate about the review, The Atlantic's Conor Friedersdorf made the strongest and most concise case against Kinsley's position. When we look at the competing track records of the government and journalists in deciding what should be kept secret and what should be made public, Friedersdorf argued, it is clear that journalists have done a far better job. For that reason, journalists, and not the government, should get to decide.

Friedersdorf also made a point of stipulating that this does not imply blanket permission for leakers to divulge to journalists any information they wish. In Friedersdorf's words, "The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn't to say that they always should be), but where journalism based on classified information is not criminalized."

That sounds like a perfectly reasonable compromise — at least until you think it through.

Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf's least-bad system, it's journalists who decide what can and can't be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated.

To which many will no doubt respond: So what? That's exactly how it should work!

Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, "it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts."

We're all journalists now.

In such a world, Friedersdorf's rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime.

In such a world — a world completely lacking in disincentives to leak classified information — government secrecy would be rendered impossible.

"But no," I imagine Friedersdorf objecting. "I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish."

To which the proper reply is to repeat Kinsley's line that making such a call — deciding who is and who is not a "real" journalist — is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?

And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it?

What about someone who runs a blog with a tenth of Sullivan's traffic and journalistic experience? A hundredth? A thousandth?

We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That's where Friedersdorf's "least-bad system" leads us, I'm afraid.

Which means that Friedersdorf leads us right back to Kinsley: "Someone gets to decide, and that someone cannot be Glenn Greenwald."

Pace Friedersdorf, the least-bad system is the one we have right now: Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.

This system isn't perfect. Free speech absolutists don't like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.

But in a world where secrets are necessary, this may be the best that a democracy can do.