"journalists should only publish what the government says it is OK for them to publish"
All you can do is to paraphrase the Young Turks' paraphrase of Barry Eisler's paraphrase of Michael Kinsley's piece -- and since Eisler begins by truncating a paragraph of Kinsley's, the paraphrase drifts rather far from the original. The full paragraph reads:
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
I have added the emphasis. The fact is that, in conducting public business in the public interest, public institutions will produce information, not all of which can be immediately and appropriately disseminated to the public -- and in a democracy, the public allows a limited number of elected officials to provide mechanisms for safe-guarding this information. The deliberate division of government into independent federal, state, and local levels, and into independent legislative, judicial, and executive branches, produces different interests and inevitable conflicts that provide limits on anyone's power, and the frequency of elections ensures that no particular interest can dominate, unless the public allows that. Let us illustrate just a few of the issues we should discuss:
(A) It is sometimes good public policy to have government-owned hospitals that treat some sectors of the public. The patients then have legitimate privacy interests in the handling of their medical records. These privacy interests may be protected through a combination of statute, regulation, and institutional policy. Does anyone want to argue that any person, simply by calling himself a journalist, would thereby acquire a defensible right to publish any collection whatsoever of medical records provided to the "journalist" by a leaker? It seems to me that in such a case, what Kinsley says is generally true: Someone gets to decide, and in the final analysis that someone generally cannot be the journalist
(B) Some criminal investigations can be long drawn-out affairs, lasting many years. In a variety of situations, criminal investigators withhold information from the public for entirely legitimate reasons -- such as ensuring that detailed knowledge of a crime is actually evidence of participation or preventing certain individuals from fleeing the jurisdiction before a solid case develops, because the fugitives have discovered that they are investigative targets. Does anyone want to argue that any person, simply by calling himself a journalist, would thereby acquire a defensible right to publish any collection whatsoever of current investigative records provided to the "journalist" by a leaker? It seems to me that in such a case, what Kinsley says is generally true: Someone gets to decide, and in the final analysis that someone generally cannot be the journalist
(C) Personnel records of government employees can contain sensitive personal information, such as medical information associated with absences or lurid details of spurious allegations made against an employee. Employees may then have legitimate privacy interests in the handling of their personnel records. Does anyone want to argue that any person, simply by calling himself a journalist, would thereby acquire a defensible right to publish any collection whatsoever of personnel records provided to the "journalist" by a leaker? It seems to me that in such a case, what Kinsley says is generally true: Someone gets to decide, and in the final analysis that someone generally cannot be the journalist
(D) Contract negotiations often require bargaining with imperfect knowledge of another party's bargaining posture. Additional information can confer a significant bargaining advantage. This remains true when one party is a governmental agency engaged in bargaining with a private firm for a contract to provide goods or services. The agency has some obligation to tax-payers to obtain favorable terms, and the agency loses position if internal information about the agency's stance becomes available to the other party. So governmental agencies typically refuse to divulge some information to the public while contracts are sought and negotiated. Does anyone want to argue that any person, simply by calling himself a journalist, would thereby acquire a defensible right to publish any collection whatsoever of contract negotiation information provided to the "journalist" by a leaker while contracts are being sought or negotiated? It seems to me that in such a case, what Kinsley says is generally true: Someone gets to decide, and in the final analysis that someone generally cannot be the journalist
(E) Similar remarks apply to military matters. Military contingency planning and cryptographic work (for example) can lose value very quickly if the information becomes public. Does anyone really want to argue that any person, simply by calling himself a journalist, would thereby acquire a defensible right to publish any collection whatsoever of cryptographic information (say) provided to the "journalist" by a leaker? It seems to me that in such a case, what Kinsley says is generally true: Someone gets to decide, and in the final analysis that someone generally cannot be the journalist
All the outrage directed against Kinsley conveniently overlooks what I highlighted: ... No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication ...
We know that the ability to hide facts can be used to hide both blunders and crimes, together with other questionable acts and shady deals. That's one reason Washington has always leaked like a sieve. And it's why the US almost never even tries to prosecute journalists: the attempt to do so will almost always be a political disaster. But we also have an ideal of the rule of law, according to which neither official nor outsider is declared free from the limits imposed by statute. Should our practice openly tilt in favor of publication? Of course, it should. But our control over outcomes should largely be handled by elections -- and we elect officials but do not elect journalists. Thus from a legal point of view, the decisions on what may be published, and what may not, are decisions made under law and regulation. The result, like so many "results" in our political system, is a teeter-tooter: the practice and the supposed legal framework tug back and forth, in a sort of permanent tension mediated by political forces
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