How Julian Assange's arrest could test the First Amendment

If the U.S. charges Assange under the Espionage Act, it could put journalistic methods on trial.
April 11, 2019, 5:54pm
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For years, press freedom advocates have feared that the U.S. government might prosecute Julian Assange for publishing classified information under a century-old law originally aimed at spies: the Espionage Act.

But the Department of Justice threw a legal curveball on Thursday morning after the WikiLeaks founder was arrested in London. The indictment made public soon afterward tiptoed around Assange’s publication of leaked national security cables, instead charging him in a conspiracy to hack Pentagon computer systems.

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The filing cast Assange as an active participant in then-Army intelligence officer Chelsea Manning’s 2010 theft of classified national security cables—rather than a passive recipient. While that will likely limit the direct impact of the case on other news organizations, media law experts told VICE News that it could be just the opening salvo in a longer-term legal strategy by federal prosecutors.

“From the broadest perspective, I’m relieved this is not an Espionage Act prosecution,” First Amendment lawyer Floyd Abrams said. “That said, it’s not nothing for the government to indict an entity that—whatever one thinks of WikiLeaks—plays a press-like role. It does disseminate information, sometimes very valuable information, to the public.”

The Obama and Trump administrations have aggressively prosecuted national security leakers like Manning under the 1917 Espionage Act, which limits speech that undermines the U.S. government. The threat of prosecutors aiming it toward WikiLeaks—which occupies a gray space between media outlet and hacker collective—spurred fears that traditional news publishers that routinely publish classified information could be next.

READ: Read the charges against Julian Assange

But the allegations filed in federal court in Virginia claim that Assange went far beyond normal reporting methods. After Manning already leaked Assange hundreds of thousands of classified records, the indictment argues, he assisted her in attempting to crack a Pentagon computer network password in the hope of obtaining additional documents.

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“Whatever criticism or praise the press gets from certain national security reporting, I can’t think of a situation in which a journalist has been accused of literally cracking some classified password,” Abrams said.

Assange’s arrest by British authorities Thursday came in response to American prosecutors’ extradition request, which will be decided in a U.K. court. Speaking to reporters outside the London courthouse where Assange was formally charged, his lawyer Jennifer Robinson said the indictment “sets a dangerous precedent for all media organizations and journalists.”

"Since 2010 we’ve warned that Julian Assange would face extradition to the U.S. for his publishing activities with WikiLeaks," Robinson said. "Unfortunately, today we’ve been proven right."

The indictment makes several references to WikiLeaks’ publication of the classified cables. But it emphasizes Assange’s efforts to aid Manning, without explicitly stating whether they were successful.

“If you break into someone’s home to get information, you don’t have legal protection under the guise of sharing the news”

“The issue of whether he’s a journalist or not has become much less legally significant,” said David A. Schulz, a First Amendment lawyer who advised The Guardian when it published documents leaked by national security contractor Edward Snowden. “If you break into someone’s home to get information, you don’t have legal protection under the guise of sharing the news.”

Despite the limited scope of the charges, however, media law experts cautioned that the indictment could be the first step in a drawn-out legal battle. WikiLeaks has published caches of classified documents on numerous occasions, and it’s come under widespread criticism for disseminating hacked emails from Hillary Clinton’s 2016 presidential campaign.

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READ: Julian Assange was just arrested after being dragged out of the Ecuadorian embassy in London

“We don’t know if any other shoes are going to drop,” said Jonathan Peters, a media law professor at the University of Georgia. “They could drop more indictments. “They could use this one to gather more evidence and put together more charges.”

That would hold the potential to lead the legal battle into more dangerous territory for other media outlets. The indictment on Thursday pointed to how WikiLeaks “publicly solicited submissions of classified, censored, and other restricted material” and then “took measures to conceal Manning” as its source. They are textbook reporting practices.

“While the Trump administration has so far not attempted to explicitly declare the act of publishing illegal, a core part of its argument would criminalize many common journalist-source interactions that reporters rely on all the time,” Trevor Timm, executive director of the Freedom of the Press Foundation, said in a statement. “Requesting more documents from a source, using an encrypted chat messenger, or trying to keep a source’s identity anonymous are not crimes; they are vital to the journalistic process.”

Jane Kirtley, director of the University of Minnesota Silha Center for the Study of Media Ethics and Law, said that the legal strategy against Assange contrasts starkly with the government’s strategy toward the Pentagon Papers in 1971. Whereas the Nixon administration directly challenged The New York Times under threat of the Espionage Act before publication, it is now taking a less aggressive route after publication.

“Having observed how the government deals with [the Espionage Act] over the years, they move very incrementally, so they don’t lose badly as they did in the Pentagon Papers case,” Kirtley said. “I see this as an incremental step. If it is, this could be the next step to charging journalists under the Espionage Act.”

Cover image: WikiLeaks founder Julian Assange speaks on the balcony of the Ecuadorean Embassy in London, Friday, Feb. 5, 2016. (AP Photo/Kirsty Wigglesworth)