Journalist or not, photography isn’t a hate crime

The arrest of Alexa Wilkinson on felony hate crime charges for photographing vandalism at the New York Times building has prompted hairsplitting about whether they’re a journalist. The New York Times explained that Wilkinson’s “lawyers described them as a journalist, but did not name any publications for which Mx. Wilkinson works.”

Wilkinson certainly has a track record as a journalist. Whether the content they were charged for is journalism or PR is, I suppose, up for debate. But should we even bother debating it? Regardless of how we categorize Wilkinson’s work, the charges set dangerous precedents that threaten the constitutional protections journalists depend on to do their jobs.

As we all learned — or should have learned — from the Julian Assange prosecution, obsessing over whether a particular defendant meets someone’s arbitrary definition of journalism is a waste of time. What that case left us with at the end of the day is a Trump administration armed with a bipartisan consensus that routine journalistic acts, like talking to sources, obtaining government secrets, and publishing them, can be prosecuted as a felony under the Espionage Act. Those who change their tune when the next defendant is someone they like better than Assange will be easily discredited by their hypocrisy.

The same dangers apply when Wilkinson’s photography is treated as a hate crime. Wilkinson’s case stems from a July protest in which activists doused the Times headquarters in red paint and spray-painted “NYT lies, Gaza dies” on its windows. In addition to charging the vandals, New York prosecutors charged Wilkinson, who photographed the scene, with aggravated harassment as a hate crime.

New York authorities should be combating these cynical attempts to use antisemitism to justify authoritarianism. Instead, they’re fueling the trend.

But there was no hate crime. Vandalizing a building to protest perceived pro-Israel bias in news coverage is a political statement, not an antisemitic one. The vandalism may well be illegal, and we condemn it, as news outlets large and small are under increased threat in this charged political environment. We even documented the vandalism itself in our U.S. Press Freedom Tracker.

But labeling actions that criticize a newspaper’s editorial decisions as a hate crime conflates political views with bigotry. Many journalists object to Israel’s slaughter of their peers in Gaza — and the U.S. media’s relative silence about it — for reasons having nothing to do with anyone’s religion. And many Jews themselves oppose Israel’s actions in Gaza and object to coverage they view as excusing or normalizing Israel’s conduct.

I’m one of those Jews, and I think what’s antisemitic is to assume that we monolithically share the politics of Benjamin Netanyahu and his ilk, who I consider the worst thing to happen to Judaism since the 1940s. As the saying goes, one day everyone will have been against this. When that time comes, efforts to conflate anti-Israel or anti-genocide views with antisemitism will leave Jews holding the bag for Israel’s reprehensible actions, America’s role in supporting them, and whatever blowback follows. That’s when the real antisemitism will start.

New York authorities should be combating these cynical attempts to use antisemitism to justify authoritarianism. Instead, they’re fueling the trend. Wilkinson’s case, in a blue state, legitimizes the Trump administration’s un-American actions, like its efforts to deport Mahmoud Khalil over his criticisms of Israel and Rümeysa Öztürk for co-writing an op-ed arguing for boycotts of Israeli products. The administration baselessly argues that their constitutionally protected speech constitutes support for Hamas and threatens national security. And several Republican attorneys general have floated the idea that reporting critical of Israel could be punished as support for terrorism. Wilkinson’s case only gives cover to those advancing these absurd arguments.

Israel showed us exactly where conflating speech with violence leads. Last month, Israel killed 31 journalists in airstrikes on newspaper offices in Yemen — the deadliest single attack on the press in 16 years, according to the Committee to Protect Journalists. Israel has justified the strikes by characterizing the targeted outlets as publishing “terrorist” propaganda.

Should we debate whether those massacred in Yemen (or Gaza) followed the Associated Press Stylebook or strictly adhered to journalistic codes of ethics? Or should we just acknowledge that militaries shouldn’t blow people to bits over what they say and write, regardless of whether it’s bad journalism or even propaganda?

Even setting aside the hate crime charge, Wilkinson’s case has broader implications for the press that don’t hinge on whether they’re a card-carrying member. The complaint against Wilkinson reportedly emphasizes not just the photographs they took but also social media posts criticizing Times staff and alleged foreknowledge of the vandalism. This suggests prosecutors view Wilkinson as complicit because of proximity or sympathy to those who committed it and awareness of their plans.

But objectivity is not a precondition for constitutional protection. It’s a relatively recently developed journalistic norm — with its share of critics — that would have been seen as ridiculous when the First Amendment was written.

Should we debate whether those massacred in Yemen (or Gaza)...adhered to journalistic codes of ethics? Or should we just acknowledge that militaries shouldn’t blow people to bits over what they write?

As for embedding and foreknowledge, journalists routinely embed with groups whose members commit illegal acts. For example, the Israeli army, which, according to the United Nations, is committing genocide. Domestically, police reporters ride along with officers who may use excessive force. Investigative journalists cultivate sources involved in criminal activity. If foreknowledge of illegal acts or presence when they occur makes one legally complicit, journalism as we know it becomes impossible.

And for those concerned about journalistic ethics and objectivity, what impact do you think it’ll have if reporters are allowed to embed with government-approved lawbreakers, like soldiers and police, but not dissidents? Will that result in “fair and balanced” coverage?

Your opinion about Wilkinson’s work won’t change the trajectory of our democracy. But prosecutors in America’s biggest city validating the Trump administration’s criminalization of dissent very well might. Every journalist — and everyone who depends on journalism to hold power to account — should be alarmed.

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