pinit_fg_en_rect_red_20 GEN - The Governments Indictment of Julian Assange Poses a Clear and Present Danger to Journalism, the Freedom of the Press, and Freedom of Speech




A Threat To The Free Press


Assistant Attorney General John Demers, head of the Department of Justices National Security Division, told reporters after the indictment that the department takes seriously the role of journalists in our democracy and we thank you for it, and that its not the governments policy to target them for reporting. But its difficult to separate the Assange indictment from President Trumps repeated attacks on the press, including his declarations on Twitter, at White House briefings, and in interviews that the press is the enemy of the people, dishonest, out of control, and fake news. Demers statement was very narrowdisavowing the targeting of journalists, but not the prosecution of them as part of targeting their sources. And contrary to the DOJs public statements, the actual text of the Assange Indictment sets a dangerous precedent; by the same reasoning it asserts here, the administration could turn its fervent anti-press sentiments into charges against any other media organization it disfavors for engaging in routine journalistic practices.

Most dangerously, the indictment contends that anyone who counsels, commands, induces (under 18 USC 2, for aiding and abetting) a source to obtain or attempt to obtain classified information violates the Espionage Act, 18 USC 793(b). Under the language of the statute, this includes literally anything connected with the national defense, so long as there is an intent or reason to believe that the information is to be used to the injury of theUnited States, or to the advantage of any foreign nation. The indictment relies heavily and repeatedly on allegations that Assange encouraged his sources to leak documents to Wikileaks, even though he knew that the documents contained national security information.


The DOJ indictment thus raises questions about what specific acts of encouragement the department believes cross the bright line between First Amendment protected newsgathering and crime. If a journalist, like then-candidate Trump, had said: "Russia, if youre listening, I hope youre able to find the [classified] emails that are missing. I think you will probably be rewarded mightily by our press," would that be a chargeable crime?

The DOJ Does Not Decide What Is And Isnt Journalism

Demers said Assange was no journalist, perhaps to justify the DOJs decision to charge Assange and show that it is not targeting the press. But it is not the DOJs role to determine who is or is not a journalist, and courts have consistently found that what makes something journalism is the function of the work, not the character of the person. As the Second Circuit once wrote in a case about the reporters privilege, the question is whether they intended to use materialsought, gathered, or receivedto disseminate information to the public. No government label or approval is necessary, nor is any job title or formal affiliation. Rather than justifying the indictment, Demers non-sequitur appears aimed at distracting from the reality of it.

Moreover, Demers statement is as dangerous as it is irrelevant. None of the elements of the 18 statutory charges (Assange is also facing a charge under the Computer Fraud and Abuse Act) require a determination that Assange is not a journalist. Instead, the charges broadly describe journalismseeking, gathering and receiving information for dissemination to the public, and then publishing that informationas unlawful espionage when it involves classified information.



Despite this precedent and American tradition, three of the DOJ charges against Assange specifically focus solely on the purported crime of publication. These three charges are for Wikileaks publication of the State Department cables and the Significant Activity Reports (war logs) for Iraq and Afghanistan, documents which were also published in Der Spiegel,The Guardian,The New York Times,Al Jazeera,and Le Monde, and republished by many other news media.

For these charges, the government included allegations that Assange failed to properly redact, and thereby endangered sources. This may be another attempt to make a distinction between Wikileaks and other publishers, and perhaps to tarnish Assange along the way. Yet this is not a distinction that makes a difference, as sometimes the media may need to provide unredacted data. For example, in 2017 the New York Timespublished the name of a CIA official who was behind the CIA program to use drones to kill high-ranking militants, explaining that the American public has a right to know who is making life-or-death decisions in its name.

While one can certainly criticize the press publication of sensitive data, including identities of sources or covert officials, especially if that leads to harm, this does not mean the government must have the power to decide what can be published, or to criminalize publication that does not first get the approval of a government censor. The Supreme Court has justly held the government to a very high standard for abridging the ability of the press to publish, limited to exceptional circumstances like publication of the sailing dates of transports or the number and location of troops during wartime.

A Threat to Free Speech

In a broader context, the indictment challenges a fundamental principle of free speech: that a person has a strong First Amendment right to disseminate truthful information pertaining to matters of public interest, including in situations in which the persons source obtained the information illegally. In Bartnicki v. Vopper, the Supreme Court affirmed this, explaining: it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. ... [A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.

