Journalists Should Worry about Obama, Not Sean Penn

In 2011, at an American Society of Magazine Editors awards ceremony, Jann Wenner waxed nostalgic about the birth of New Journalism in the 1960s.

“From the beginning of Rolling Stone, we aspired to be a part of that genre — long reportorial sagas, as first-person and writerly as necessary, intense in their sense of place and personality, and, as I said, sagas.”

Sean Penn’s recent article in Rolling Stone on his meeting with fugitive Mexican drug lord Joaquin “El Chapo” Guzman is certainly, if nothing else, a saga. But it is a far cry from the standards Wenner insisted on in the 1970s, when I once wrote for the magazine. Wenner told The New York Times that he is proud of Rolling Stone’s extraordinary get; but the magazine failed to do anything worthwhile with what it got.

Penn’s 11,000 words of unreadable prose showed no signs of being edited and offered little if any insight into a narco terrorist whose organization, the Sinaloa Cartel, rivals ISIS in its unmitigated brutality. Penn portrayed Guzman as a latter-day Zapata whose violent modus operandi is justified by the class struggle that gives poor Mexicans no other avenue to success.

Not since Walter Duranty feted Joseph Stalin in The New York Times has a journalist so thoroughly whitewashed the misdeeds of a mass murderer.

The Times published Duranty’s dispatches — which used official statements from Stalin as his sole source — only after his work had been vetted by Soviet censors. Rolling Stone gave El Chapo full editorial approval over the article. Apparently, the drug lord was so pleased with the content of Penn’s hagiography that he didn’t request a single change.

The journalism community reacted to the article with ridicule and outrage, accusing Penn of not being a “real journalist.” Andrew Seaman, the chair of the ethics committee for the Society of Professional Journalists, wrote in a SPJ blog post that “allowing any source control over a story’s content is inexcusable.”

Seaman is right to criticize Rolling Stone for its lax journalism standards. But Politico’s media critic Jack Shafer is also right when, in a recent headline, he tells journalists to “Stop Complaining About Sean Penn.”

Far more disturbing than Rolling Stone’s journalistic lapses were the almost immediate reports that Penn was under criminal investigation by Mexican and U.S. law enforcement authorities for his interview.

On Jan. 10, Agence France-Presse (AFP) quoted an anonymous source within the Mexican government who said officials wanted to question Penn and Mexican telenovela star Kate del Castillo (who arranged the interview) “to determine responsibilities.” A second Mexican law enforcement official told AFP that “while a reporter could interview a drug cartel suspect, ‘they’re not journalists.’”

The next day the New York Post reported that U.S. Attorney Preet Bharara “is leading a federal probe of Sean Penn” and that “prosecutors are seeking a subpoena to search (his) cellphone.” An anonymous U.S. law enforcement official told the Post that Penn’s interview with El Chapo was “disgusting,” adding, parenthetically, that the actor is “very anti-government.”

However, there can be no question that Penn is a journalist — albeit a very bad one. And the First Amendment doesn’t distinguish between good and bad journalists in protecting press freedoms. If professional journalists don’t stand up for Penn now, they may find themselves targeted by law enforcement in the future.

In fact, professional journalists have already been targeted multiple times by the Obama administration in criminal investigations of their sources. Obama — who once said that his administration would be the most transparent in history — has waged a war on government whistleblowers, with professional journalists suffering the collateral damage.

During a 2010 probe of classified leaks, Obama’s Department of Justice (DOJ) filed an FBI affidavit in U.S. court accusing Fox News reporter James Rosen of violating the Espionage Act by engaging in nothing more than traditional newsgathering activities. In 2013, the Associated Press revealed that Obama’s DOJ had secretly seized records for more than 20 separate telephone lines assigned to the A.P. and its journalists.

“We regard this action by the Department of Justice as a serious interference with A.P.’s constitutional rights to gather and report the news,” the A.P.’s President and CEO Gary Pruitt said in a May 2013 letter to Eric Holder.

Later that month, Pruitt warned during an appearance on CBS’ Face the Nation that if the government continues to monitor and interfere with newsgathering activities, “the people of the United States will only know what the government wants them to know, and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment.”

Between 2014 and 2015 Eric Holder made changes to the DOJ’s “media guidelines” with the intent of raising the bar for when and how the government could conduct surveillance on journalists. However, documents produced by the DOJ in response to a FOIA lawsuit by the Freedom of the Press Foundation confirm that the media guidelines “only apply to law enforcement tools, not national security tools.”

The Justice Department’s secret rules for targeting members of the media with national security orders remain classified.

“Given that all federal leak prosecutions in the past decade that have involved the surveillance of journalists were national security cases,” writes Trevor Timm in the January 2016 Columbia Journalism Review, “why should the revised media guidelines comfort journalists at all?”

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.