Federal prosecutors in Michigan and around the country are claiming a startling new power: the ability to decide what is or isn’t “legitimate” journalism. Even as President Joe Biden and his administration declare that “journalism is not a crime,” federal prosecutors are attempting to define away journalism so they can go after reporters — with disastrous consequences for press freedom.

Prosecutors disparage documentaries

In Michigan, prosecutors recently attacked journalist Trevor Aaronson and the entire field of documentary journalism, simply because Aaronson wants to report on a local terrorism prosecution of a Michigan man, Aws Naser.

The First Amendment protects reporting on criminal cases, because openness and transparency help make our justice system fair. But the government accused Aaronson of having “improper motives” and plans to present a “biased” and “one-sided” point of view, all because he’s been speaking with Naser and may want to make a documentary about the case.

Even more disturbingly, prosecutors claimed that documentaries aren’t legitimate journalism. Documentaries aren’t like news articles, prosecutors wrote, because they’re “powerful vehicles for presenting a narrative, evoking strong emotions, and creating a long-lasting impression of the subject matter” and may focus “on a specific perspective and leav(e) out important information.”

Aaronson recently spoke to Freedom of the Press Foundation (FPF) about the “egregious and false” accusations against him. Prosecutors’ actions, he said, are a form of intimidation. “In my opinion, the fear is that this creates a chilling effect,” Aaronson added.

The basic premise of prosecutors’ argument — that the government has the power to define journalism — is also wrong and, if accepted by courts, would threaten press freedom. The First Amendment ensures freedom of the press by protecting it broadly, including everything from handbills to blogs.

Reporting that relies on evocative or emotional narratives also doesn’t lose its First Amendment simply because it’s effective. In Michigan alone, documentaries have used entertaining devices or powerful personal stories to cover some of the most important news stories in recent decades, from the General Motors’ decline to the Fab Five and the Flint water crisis.

Most importantly, giving the government the power to define journalism would empower it to stifle or censor news reporting it dislikes. That’s especially true if courts let prosecutors define journalism based on whether they consider a particular medium or reporter “biased.” The First Amendment says nothing about objectivity, and it’s rare for a government official to admit that criticism of their actions is fair.

To the contrary, countless government officials have spuriously accused journalists who report critically about them or expose their wrongdoing of one-sidedness, bad reporting, or other misconduct. In almost every case, officials were actually upset that journalists were holding them accountable.

That may be exactly what’s happening in Aaronson’s case. Aaronson is well known for his reporting on problematic FBI undercover investigations. It’s a safe bet that this past reporting played a big role in the government’s attempt to stop him from digging into this more recent case, in which Naser has also alleged FBI misconduct.

Not ‘real’ journalism excuse

But at least the government isn’t actually prosecuting Aaronson — it’s trying to prevent him from accessing court records to stymie his reporting. In other cases, prosecutors have used the “it’s not journalism” excuse to actually criminalize reporting.

Earlier this year, the government charged journalist Tim Burke with breaking federal laws for finding unaired Fox News footage of an antisemitic rant to Tucker Carlson by Ye, formerly Kanye West, on the internet and disseminating it. Burke’s past reporting is well known, and although he’s no longer employed by a news outlet, he continues to consult for them. Last year, a federal judge recognized that Burke is a “member of the media.”

But the FBI and prosecutors seem to be waiving away concerns that they’re targeting a journalist, by ignoring the news value of the clips Burke reported on, referring to him as a former journalist, or being cagey about whether they complied with laws and policies meant to protect reporters.

Then there’s the recently settled case against Julian Assange. The debate over whether or not Assange is a journalist is a red herring. The government knew full well that convicting Assange for obtaining and publishing government secrets under the Espionage Act would set a disastrous precedent for journalism — that’s exactly why the Obama administration declined to prosecute him.

Unfortunately, that hasn’t stopped prosecutors and other government actors from repeatedly arguing that Assange isn’t a journalist, in a cynical ploy to confuse people into thinking that the case, and the Espionage Act, wouldn’t impact “real” journalists.

Journalism is an activity, not just a job

To protect freedom of the press, courts and lawmakers need to treat arguments like these — that certain forms of journalism “don’t count” or that a journalist’s point of view puts them outside the First Amendment — as complete nonstarters.

Instead, we should look to a “functional definition” that considers whether a person is performing an act of journalism: finding news and sharing it with the public. For example, the PRESS Act — the federal reporter’s shield bill that’s passed the House and is under consideration in the Senate — would use a functional definition to protect any person who regularly gathers, writes, or reports the news from government spying or being forced to reveal their sources.

The functional definition safeguards the public’s right to know. It recognizes that the First Amendment protects journalism by a neighborhood blogger just as much as it would reporters at The Wall Street Journal or The Washington Post. It applies equally to journalists who praise the government and those who denounce it.

Journalists themselves also need to cover these stories and point out why attacking freelancers like Burke, documentarians like Aaronson, or citizen journalists like Priscilla Villarreal (who was arrested for nothing more than asking government employees questions) is so problematic for press freedom.

If the government can deny journalists access, impede their reporting, or even prosecute them whenever it makes the self-serving decision that their journalism isn’t legitimate, then journalism will, in fact, be a crime.