Last week, the U.S. government slipped up and exposed in an unrelated legal filing that there is apparently a sealed criminal complaint against the controversial WikiLeaks editor in chief, Julian Assange. The nature of the charges, as well as when they were actually filed, remains unclear, leaving pundits to speculate on possible legal avenues the government may have pursued and the potential impact upon the protections of the First Amendment. No matter how you feel about Assange, though, his legal fate potentially strikes at the heart of the foundations of a free and independent press in the United States. It is incumbent upon even those of us who despise him to stand against any effort that might seek to differentiate one outlet of the press from another for the purpose of criminal liability.
First made famous in 2010 with the release of a wide array of classified documents leaked to him by Chelsea Manning, Assange has been holed up in the Ecuadorian Embassy in London for six years and counting. That physical isolation from the rest of the world has not slowed down Assange or WikiLeaks, which played crucial roles in the final months of the 2016 U.S. presidential election by releasing countless stolen emails from the Democratic National Committee and John Podesta, then the chair of Hillary Clinton’s campaign. The manner in which those emails were obtained in the first place, as well as their subsequent transmission to Assange and the uncanny timing of their release by WikiLeaks at pivotal points in the campaign, remains an ongoing subject of interest in Special Counsel Robert Mueller’s Russia investigation.
We know virtually nothing about the specifics of the charges against Assange, leaving the question of which criminal statutory authority the government has relied upon open to speculation. Are these Espionage Act charges for publishing leaked classified information? Are these computer hacking or fraud charges under the Computer Fraud and Abuse Act? Are they conspiracy charges for seeking to defraud the United States by way of interfering with the lawful execution of the 2016 election? No one knows yet.
If the indictment concerns criminal activities that are independent of any theoretical journalistic action, all but the most hardened Assange fans will likely join me in calling for his immediate extradition, prosecution, and (likely) conviction. Being a journalist does not provide immunity from criminal liability for non-journalistic acts, such as hacking email accounts or private systems. Engaging in that type of misconduct is not necessary to conducting invasive and effective investigative journalism. In fact, journalists at traditional media outlets receive considerable legal training in order to avoid running afoul of the limits of their First Amendment protections.
What about the publication of the leaked Manning-era documents, or the more recent Vault 7 classified leaks? The Obama administration had an institutional policy that concluded prosecuting Assange for the mere publication of classified documents was too controversial and legally risky: A successful prosecution could serve as the foundation for future misuse of that authority to clamp down on more traditional media outlets.
If the Trump administration has uncovered evidence that alters that factual analysis, however, that may have provided an opening to pursue prosecution that would not risk going down the slippery slope that concerned the Obama administration. Is there evidence that Assange (and WikiLeaks writ large) received financial or nonmonetary support from foreign governments, particularly in the course of the 2016-election document dumps? Is there sufficient evidence that Assange was not merely an unwitting fool but rather a cognizant partner in the conspiracy to defraud the United States that has resulted in numerous indictments by the special counsel against Russian nationals? If so, all bets are off.
If none of those things are true, though, and the indictment is simply about the publication of classified materials, I would be publicly and adamantly opposed to that prosecution succeeding. I say this despite my personal disgust for Assange, whom I view as a narcissistic egomaniac with an apparent personal grudge against the intelligence apparatuses of the Western democracies. Under certain circumstances, I would shed no tears in watching Assange spend the rest of his days in prison.
I am not, however, willing to see that personal dream brought to fruition at the expense of other freedoms. The First Amendment and its protections of a free press are more important than punishing Assange. Media outlets publish leaked classified information and materials all the time. It is part of the way that the press holds our government accountable no matter which political party is in power, albeit with obvious national-security implications behind the scenes that the public rarely knows about. One of the most famous moments in the history of the U.S. press revolves around the publication of the Pentagon Papers and the successful legal efforts by The New York Times and The Washington Post pushing back against the Nixon administration’s efforts to shut down their publication.
If Assange can be prosecuted merely for publishing leaked classified documents, every single media outlet is at risk of prosecution for doing the exact same thing. There would be no way to differentiate a traditional media outlet such as The New York Times or The Atlantic from an entity like WikiLeaks without involving the government and the courts in the formulation of a legal definition of what qualifies as a part of the press. Is it only a traditional outlet like a newspaper or a television network? What about legal bloggers who do freelance work? Or how about online-only platforms? Is one more deserving of First Amendment protection than the other? This is not something I want the government deciding in a criminal context.
Journalism in the 21st century takes on an increasing variety of forms, because of the advance of technology. Neither civil-rights-oriented liberals nor small-government conservatives should be advocating for a government definition of that journalism. To steal a phrase from Shakespeare’s King Lear, “That way madness lies.”