Assange's Espionage Act Charge Sets Up A Fight Over The First Amendment

Press freedom advocates warn the government's latest charges could have dangerous implications for journalism.

Espionage charges filed by U.S. prosecutors Thursday against WikiLeaks founder Julian Assange put his case on a direct path for a First Amendment fight ― one that should have journalists and supporters of a free press concerned.

The 17 charges released this week follow Assange’s highly publicized arrest in April at the Ecuadorian Embassy in London. U.S. federal prosecutors at the time charged Assange with computer hacking, related to helping former Army Pvt. Chelsea Manning obtain classified documents on U.S. Department of Defense computers that WikiLeaks later published.

Assange’s indictment for hacking already raised questions for press freedom and could have possibly set a dangerous precedent for journalists. But legal experts say the new espionage charges are even more worrying.

“This is serious,” said Jane Kirtley, a First Amendment expert and a media ethics and law professor at the University of Minnesota. “Everybody in the news business and frankly everybody who is a consumer of information needs to be paying attention to this.”

That’s because the actions Assange is being targeted for things that resemble what journalists do all the time ― such as soliciting tips and using leaked classified information in stories. The Department of Justice made a point in a press conference on Thursday of asserting that it does not view Assange as a journalist and that the department takes issues of press freedom seriously. But whether Assange is a journalist doesn’t really matter ― instead, it matters whether his actions were essentially the same as those of a news outlet.

Prosecutors accused Assange of violating the Espionage Act, a 1917 law that allows the government to curtail what forms of speech are legal, is typically used to prosecute spies and sometimes whistleblowers. It doesn’t carve out a specific exemption for journalists, and convicting Assange for what is essentially a journalistic act could have broad implications.

This was a shift from the previous charges. Press freedom advocates were initially somewhat relieved when the U.S. opted to charge Assange on hacking rather than espionage charges in April, as prosecutors could draw a clearer line between actively assisting a source to break the law and what would fall under generally accepted journalistic practices. Many experts were still dubious of how prosecutors defined Assange’s role in helping Manning obtain the classified information, which presented its own implications for press freedom, but hoped the government would clearly outline why what Assange did was a criminal act that would egregiously violate any media outlets ethics and standards.

The decision to also charge Assange with violating the Espionage Act suggests the government may be prosecuting him for actions that are essentially the same as how traditional journalists and news organizations gather information and distribute it. If Assange is convicted, there would be little stopping the government from levying similar charges against established media outlets or journalists who also received and published classified information.

“Whatever happens to Julian Assange could potentially happen to any journalist, anywhere ― including someone who the government would acknowledge has a more traditional journalistic role,” Kirtley said.

One of the key parts of Assange’s indictment, for instance, is the government’s insistence that WikiLeaks encouraged sources to obtain classified information and share it with WikiLeaks for distribution. Prosecutors cite a page on WikiLeaks that contains a list of “Most Wanted Leaks.” But this is not functionally so different than journalists who issue call outs to workers at government agencies or news outlets that offer guides on how to provide them with confidential information through encrypted messaging services or secure drop boxes.

“The only reason to do this is to go after the recipients of leaks, and typically those are journalists,” said Stuart Karle, an adjunct professor at Columbia Journalism School and general counsel at North Base Media.

Press freedom advocates say that Assange fulfilled a press-like role in disseminating the Manning documents and there is a strong argument that their release was in the public interest ― exposing information such as a U.S. Apache helicopter shooting and killing two Reuters journalists in Baghdad. Although U.S. officials have said the document release put people in danger, the government has not offered much evidence of direct harm from the leaks and even then-Secretary of Defense Robert Gates admitted that the harm to U.S. foreign policy was “fairly modest.”

It’s also likely that Assange’s legal team will base their defense around First Amendment issues and press freedom. That could lead to prosecutors trying to define what the parameters of how journalists can engage in free speech and the handling of classified information, which may set a restrictive precedent for news outlets.

Assange is a highly divisive figure whose leak of classified military documents immediately made him a target for conservatives, while many on the left criticized his role in the Russian government’s pro-Trump interference campaign in the 2016 presidential election. Swedish authorities are also investigating Assange in a 2010 rape case that they reopened earlier this month.

But press freedom and First Amendment experts hope that the focus in Assange’s Espionage Act case is not on the morality of the WikiLeaks founder or his actions outside of the Manning leaks. Instead, there are crucial legal questions about what convicting Assange would mean for journalism and access to classified information that the public has a strong reason to know about.

“It’s important to focus on exactly the steps this guy took and whether those should be criminalized,” Karle said. “Because it looks a lot like journalism.”

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