The U.S. Justice Department’s decision to indict WikiLeaks boss Julian Assange under the Espionage Act has led to forceful condemnations from top newspaper editors and has legal scholars weighing the repercussions on journalists.
Assange’s prosecution is quickly turning into a landmark case, UCLA legal scholar Eugene Volokh told TheWrap. At the heart of the matter is whether it’s against the law for people to publish material they know was obtained illegally. Typically, the Espionage Act, which dates back to the first World War, has been used to target officials who leak information — rather than reporters and activists. Assange, who is facing 17 counts under the Act, is being prosecuted for publishing hundreds of thousands of State Department files from his source, former Army intelligence analyst Chelsea Manning.
“The most interesting charges are near the end of the indictment, where Assange is being prosecuted for basically simply publishing this material, knowing Manning had illegally released it to him,” Volokh said. “That’s the matter that is likely to cast the longest shadow if this prosecution is allowed to go forward and any objections to it are rejected on appeal.”
Volokh said journalists who have published illegally obtained material in the past have been protected. In 2001, Bartnicki v. Vopper established that journalists could publish illegally obtained material, as long as they didn’t participated in the illegal activity.
Conor Friedersdorf, writing in The Atlantic on Friday, argued that an Assange conviction would go against that ruling. While Manning “pledged to protect state secrets,” Assange was “under no obligation to the U.S. government, and appears to be in legal jeopardy for some actions that are virtually indistinguishable from journalism,” Friedersdorf wrote.
Prosecuting Assange, according to Washington Post executive editor Marty Baron, could severely hamper journalists moving forward.
“Dating as far back as the Pentagon Papers case and beyond, journalists have been receiving and reporting on information that the government deemed classified. Wrongdoing and abuse of power were exposed,” Baron said in a statement. “With the new indictment of Julian Assange, the government is advancing a legal argument that places such important work in jeopardy and undermines the very purpose of the First Amendment.”
Baron added: “The administration has gone from denigrating journalists as ‘enemies of the people’ to now criminalizing common practices in journalism that have long served the public interest. Meantime, government officials continue to engage in a decades-long practice of overclassifying information, often for reasons that have nothing to do with national security and a lot to do with shielding themselves from the constitutionally protected scrutiny of the press.”
That sentiment was echoed by Baron’s counterpart at the New York Times, Dean Baquet.
“A fundamental principle of the First Amendment is that journalists have the right to publish truthful information, even when a source may have broken the law to provide that information,” Baquet said.
“In charging Julian Assange for receiving and disclosing classified information in violation of the Espionage Act, the government threatens to undermine that basic tenet of press freedom. Obtaining and publishing information that the government would prefer to keep secret is vital to journalism and democracy. The new indictment is a deeply troubling step toward giving the government greater control over what Americans are allowed to know.”
One thing that’s important to keep in mind: If Assange is found to have participated in hacking or otherwise gathering the stolen information, his First Amendment protection goes out the window.
“Although there is a right to publish illegally obtained information, that does not immunize the person who obtained it illegally in the first place,” University of Virginia legal scholar Fred Schauer told TheWrap. “If Assange or others are charged with illegally getting the information in the first place, the First Amendment, under current understanding, is not implicated.”
On the other hand, if Assange is convicted for merely publishing the material and the conviction is upheld by an appeals court, the case would set a new precedent that could stifle journalists, Volokh said.
“The question is whether a reporter who gets the leak has to say, ‘Wait a minute, maybe I’m committing the crime just by publishing this information, even if I wasn’t complicit in the original leak,” Volokh said. “Here the answer would be very direct: the Assange case set a precedent. You could go to prison for publishing this.”
What makes Assange’s case so high-stakes is that it could also break in the opposite direction, reaffirming Vopper and safeguarding a journalistic right.
“I think journalists should be worried about this now,” Volokh said. But he added: “If, of course, the court holds that though these charges are precluded by the First Amendment, then journalists might say, ‘Wow, we were better off now after this prosecution because we had this important First Amendment principle established.'”