U.S. prosecutors’ indictment of WikiLeaks founder Julian Assange could trigger a protracted fight over press freedom in the United States, warn First Amendment experts.
The Department of Justice is preparing to extradite Assange, whom British authorities arrested at the Ecuadorian Embassy in London on Thursday, to the U.S. to face a charge of criminal computer hacking conspiracy. In a seven-page indictment unsealed Thursday, federal prosecutors allege that Assange assisted former Army Pvt. Chelsea Manning in cracking a password on U.S. Department of Defense computers in order to obtain classified documents WikiLeaks later published.
Although the indictment, filed in a U.S. District Court in Virginia, focuses on Assange and computer hacking, the bigger issue is that his case raises fundamental questions about press freedom. If Assange is convicted based on what is shown in the indictment, it could give the government a dangerous precedent to use against journalists in the future, First Amendment experts say.
Much of the case comes down to prosecutors’ allegation that Assange not only received classified, illegally obtained documents but that he also actively assisted Manning in taking them from the Department of Defense. This is quite different from how journalists generally obtain classified documents, which is typically as passive recipients of the information and which is protected under the First Amendment.
“The source may be subjecting themselves to liability or may be breaking the law, but the journalist is not just by receiving it. There are reasons why we protect that kind of thing,” said Gregg Leslie, executive director of the First Amendment Legal Clinic at Arizona State University.
But where Assange’s case becomes potentially threatening to journalists and press freedom, First Amendment experts say, is that prosecutors never convincingly lay out what Assange did that would rise to the level of assisting in a criminal conspiracy. Instead, many of the actions listed in the indictment as part of a criminal conspiracy appear to be normal journalistic practices necessary to a free press, such as keeping a source anonymous and sharing information protected by a password.
“If the government is not rigorous about drawing really clear lines that do not implicate standard reporting activities, then it gets problematic,” said Stuart Karle, an adjunct professor at Columbia Journalism School and general counsel at North Base Media.
Assange is a divisive figure, and the status of WikiLeaks as a journalistic enterprise is contested, but the case goes beyond either of those issues. If Assange is convicted without more concrete proof that his actions went well beyond that of a publisher receiving classified information, then it opens up a host of questions about who else is liable.
“If this is allowed, it just really shows that any time a journalist works with a government employee or contractor, then the government could consider that conspiracy to commit a crime,” Leslie said.
It’s still possible that prosecutors will reveal more evidence as the case moves forward that shows Assange played a more active role in assisting Manning, and experts say that would significantly change the press freedom issues at hand.
“It’s very hard to argue that the First Amendment protects you if you’re hacking into a government computer,” Jane Kirtley, a First Amendment expert and a media ethics and law professor at the University of Minnesota.
Journalists are not immune from prosecution, even if the First Amendment offers them protections for publishing classified information or information that may have been illegally obtained. A journalist can’t legally provide recording equipment to a source to make an illegal recording, Karle gives as an example, and providing some level of material support for computer hacking would fall along similar lines.
Based on the indictment alone, however, experts say there is little evidence that Assange did anything that would raise him to the level of a co-conspirator. Parts of the indictment also appear to stretch to implicate him, including citing Assange vaguely saying, “Curious eyes never run dry in my experience,” as proof he was actively asking Manning to seek more classified documents.
“This just seems like a very weak indictment,” Leslie said. “They don’t make a good case that he provided Manning something he couldn’t do himself.”
There is also precedent that the press obtaining illegally acquired documents is not in itself a crime. A U.S. Supreme Court case decided in 2001 (Bartnicki v. Vopper) essentially held that members of the press are not liable for publishing or broadcasting illegally obtained information if they were not involved in its acquisition.
“If you wake up in the morning and there are some top-secret documents in your email, and you had nothing to do with somebody taking it, then under that case there is a very strong argument that you would not be responsible even if your source very well might be,” Karle said.
It’s possible that prosecutors will allege that Assange and WikiLeaks are not journalistic entities and therefore should not be given press protections. This is a complicated issue, but experts say that there is a strong case for saying WikiLeaks published the Chelsea Manning documents in the public interest and revealed important information (that the U.S. military killed civilians and a Reuters cameraman in Iraq, among other abuses). That would make Assange’s role hard to differentiate from that of established media outlets.
“Regardless of what people think of WikiLeaks and whether they’re in support or not of what they are doing, they are certainly playing a press-like role,” said Nicole Ligon, supervising attorney at the First Amendment Clinic at Duke Law.
The important thing for the prosecutors to do, in order to avoid First Amendment issues, experts say, is to focus on Assange’s alleged activities that are clear deviations from standard journalistic practices and would constitute a criminal conspiracy. Few journalists or press freedom advocates would object to a case that hinges on Assange actively helping Manning hack into a government computer.
But it has long been the goal of the Department of Justice to weaken the media’s ability to publish classified information, Kirtley and other First Amendment experts say, and conflating some of the standard actions of journalists with those of a criminal conspiracy may be a means of doing that. Many press freedom advocates were thankful that the charges against Assange were not brought under the 1917 Espionage Act, which curtails what speech is legal and would have set up a huge First Amendment fight. But several media law experts said that this case could put the U.S. closer to the day when such a battle comes.
“The justice department moves very incrementally on the issue of whether journalists can be charged under the federal espionage statute,” Kirtley said. “It strikes me that this indictment is another incremental step toward doing that.”