Prosecuting WikiLeaks Endangers All Reporters, First Amendment Experts Say

The public also loses if the government prosecutes the media for leaks, experts argue

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The Trump Administration’s threat to criminally prosecute WikiLeaks could open the door to criminal charges against mainstream American news organizations because they also leak secret government documents, First Amendment experts warned.

“Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations,” said Ben Wizner, director of the American Civil Liberties Union Speech, Privacy, and Technology Project.

“Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public,” Wizner said in an emailed statement to TheWrap.

Wizner also tweeted: “Imagine if China or Russia announced a criminal investigation of US journalists for publishing their state secrets.”

Federal prosecutors are weighing whether to bring criminal charges against the WikiLeaks organization and its founder Julian Assange for its 2010 leak of diplomatic cables and military documents as well as the website’s recent disclosure of the CIA’s cyber-tools, CNN and the Washington Post reported.

Attorney General Jeff Sessions on Friday refused to rule out whether the Department of Justice would also criminal prosecute mainstream news organizations like CNN or the New York Times for publishing leaks.

“That would be speculative and I can’t comment,” Sessions told CNN Friday.

George Freeman, former in-house lawyer for the New York Times and executive director of the Media Law Resource Center, warned that a criminal prosecution against any publisher endangers all news organizations that publish confidential government documents.

“The specter of government taking criminal action against the press for publishing accurate and newsworthy information would be frightening, not just for the press, but for the entire citizenry which counts on the media to give it information about what its government is up to,” Freeman told TheWrap.

Prosecuting the publisher of lawfully obtained, accurate information about the government “would violate constitutional law as articulated several times by the Supreme Court, and, perhaps as important, would go against the traditions and ethos of over 225 years of press-government relations in our country,” Freeman added.

Trevor Timm, executive director of the Freedom of the Press Foundation, wrote in a column in the Guardian Friday that “The New York Times, Washington Post or Guardian could be next.”

“It’s important to understand just how dangerous this potential prosecution is to the future of journalism in the United States,” Timm wrote. “Newspapers publish classified information all the time, and any prosecution of WikiLeaks puts journalists of all stripes at risk of a similar fate.”

Timm called the potential prosecution of WikiLeaks “a grave threat to the first amendment.”

“If the Trump Justice Department follows through on its threat, make no mistake: Next time it won’t be a publisher you don’t like, it will be the newspaper that Trump doesn’t like — likely the one you read every day,” Timm wrote.

In a recent op-ed in the Washington Post, Assange said that WikiLeaks’ motive was “identical to that claimed by the New York Times and The Post — to publish newsworthy content.”

“The media has a long history of speaking truth to power with purloined or leaked material — Jack Anderson’s reporting on the CIA’s enlistment of the Mafia to kill Fidel Castro; the Providence Journal-Bulletin’s release of President Richard Nixon’s stolen tax returns; the New York Times’ publication of the stolen ‘Pentagon Papers’; and The Post’s tenacious reporting of Watergate leaks, to name a few,” Assange wrote. “I hope historians place WikiLeaks’ publications in this pantheon.”

The Supreme Court has ruled that a news organization cannot be sued for using stolen materials, even if a person outside the news organization engaged in a crime to obtain those documents, so long as the news organization is an innocent recipient of the documents, the documents are about a matter of public concern, and the publication does not pose an immediate, concrete threat to national security.

Prosecutors are reportedly considering charging the WikiLeaks organization with conspiracy, theft of government property or violating the Espionage Act.

CIA Director Mike Pompeo said on April 13 that the anti-secrecy group WikiLeaks is not a journalism organization but a “non-state, hostile intelligence service” that receives support from Russia.

Trump said “I love WikiLeaks” when it leaked emails from Hillary Clinton’s campaign ahead of the presidential election, but changed his mind after being elected.