Is Julian Assange a Journalist?

For First Amendment purposes, it doesn’t matter.

Because WikiLeaks editor Julian Assange has published confidential Pentagon and State Department documents on his group’s website, Senate Minority Leader Mitch McConnell (R-Ky.) says, he is properly viewed as “a high-tech terrorist.” Vice President Joseph Biden agrees.

But assuming that President Barack Obama is not ready to drop a bomb on Assange, punishing him for disseminating military records and diplomatic cables will require specifying what crime he committed under U.S. law. That won’t be easy, unless the Justice Department is prepared to criminalize something journalists do every day: divulge information that the government wants to keep secret.

The most obvious statute to use in prosecuting Assange is the Espionage Act of 1917, which makes it a crime, punishable by up to 10 years in prison, to “receive,” “deliver,” “transmit,” or “communicate” any “information relating to the national defense” that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”

In spite of the law’s sweeping language, it has almost always been applied to government employees who leak information rather than people who receive it and pass it on. The one exception was the 2005 indictment of two former pro-Israel lobbyists who were accused of receiving and disclosing classified information about U.S. policy toward Iran. Their source, a Pentagon official, was convicted under the Espionage Act, but the case against them fell apart after the judge ruled that the government would have to show they knew their disclosures were unauthorized and might damage national security.

Assange could be prosecuted even under that reading of the law, and so could all the news outlets that ran stories about the WikiLeaks documents. But the government has never used the Espionage Act to prosecute a journalist, which is what Assange claims to be.

His critics disagree. “WikiLeaks is not a news organization,” Washington Post columnist Marc Thiessen wrote last August. “It is a criminal enterprise. Its reason for existence is to obtain classified national security information and disseminate it as widely as possible.…These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism.”

There is a circular quality to this argument: Assange is not a journalist because he’s a criminal, and he’s a criminal because he’s not a journalist. But for constitutional purposes, it does not matter whether Marc Thiessen, Attorney General Eric Holder, or anyone else considers Assange a journalist.

“Freedom of the press” does not mean the freedom of those individuals who are lucky enough to be officially recognized as members of the fourth estate. It means the freedom to use technologies of mass communication, which today include the Internet. This freedom does not amount to much if the government can deny it to someone by questioning his journalistic credentials.

The Justice Department could try to avoid First Amendment problems by accusing Assange of conspiring with Pfc. Bradley Manning, the army intelligence analyst who is charged with leaking the Pentagon and State Department documents. Such a conspiracy could be a crime under the Espionage Act or the Computer Fraud and Abuse Act, which prohibits disclosure of sensitive national defense or foreign relations information obtained through unauthorized computer access. But so far no evidence has emerged that Assange was any more culpable in the leaks than a reporter who receives confidential information from a government source.

There is another way to stop anger over the WikiLeaks document dumps from turning into an assault on the First Amendment. Assuming the allegations against Manning are true, the government should be asking why its own data security practices are so shoddy that a single low-ranking soldier was able to divulge such a huge trove of supposedly secret information. 

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Suki||

    Assange is a raping scumbag terrorist.

    Good morning reason!

  • ||

    For the 100th time John, you're not fooling anyone! We know you're not really having a period.

  • Julian Assange||

    Deep sleep. Nature's Ruffie.

  • Ragnar||

    Welcome to December. Why are you running this article again?

  • Realist||

    Because they are too fucking stupid (and broke) to come up with something current!

  •  ||

    Fuck Suki and Assange.
    It's the Japocalypse!

    http://abcnews.go.com/

  • ||

    No good news from Japan. Markets close down 11%. Euro markets, down. US futures, down. 10-years starting to bounce after low of 3.2%. Gold down. The only thing up is radiation levels in Tokyo. BOJ to inject Y20 trillion. Fed meets today, Marc Faber predicts QE18 on CNBC. Bullet --> Brain.

    http://www.zerohedge.com/artic.....e-default-

    http://www.zerohedge.com/artic.....crash-mode


    Should be an interesting day.

  • ||

  •  ||

    Well, at least the Middle East is stable.

  • ||

    (Financial Times) - Saudi soldiers enter Bahrain
    More than 1,000 Saudi troops rushed to the rescue of Bahrain's royal family on Monday as neighbouring Gulf states backed the Sunni rulers' attempts to confront a popular uprising by a mainly Shia opposition.

    As the Saudi troops crossed into Manama, the capital of Bahrain, the United Arab Emirates said it had also sent 500 police officers to help quell unrest in the tiny kingdom of less than 600,000 people. The Manama regime appealed on Sunday for help from its partners in the Gulf Co-operation Council, the regional grouping.

    The cross-border intervention in the strategically important state, home to the US Fifth Fleet, dramatically raises the stakes in Bahrain's political standoff, which has pitted the Shia majority against the Sunni al-Khalifa royal family.

    [...]
  •  ||

    Well, at least the Far East is...oh.

    Yep, it's the Japocalypse™.

  • ||

    Caused by the ....................

    Illuminati Earthquake machine[?]

    http://www.youtube.com/watch?v.....r_embedded

  • ||

    This being bizarro world: investors flee stocks for the "safe haven" of US Bonds.

    Is everyone taking Crazy Pills?

  • Realist||

    "Is everyone taking Crazy Pills?"

    They don't need them most people are stupid shits.

  • Chicken Little||

    Run for your lives you dumb bastards!

  • JOhnny MAckson||

    All your base are belong to us. LOL

    Jess
    www.anonz.com

  • ||

    sez who?

  • Almanian||

    Well, thanks for the rays of sunshine, Mr. Whipple!

    Happy, happy, joy, joy!!

  • Fluffy||

    Since we don't care about the intervention of Saudi Arabia in Bahrain "at Bahrain's request", if a Shia-dominated Iraqi government ever "requests" Iran's military intervention I don't want to hear any complaints.

  • Fluffy||

    The news last night kept talking about the "calm" shown by Japanese in the face of this disaster and how it reflects well on their culture.

    I wonder when they will start talking about how another feature of Japan's "culture" - the tendency to repeatedly lie about how bad conditions are in order to "save face" - maybe doesn't reflect so well on that same culture.

  • ||

    CNN, Fox, and MSNBC are still just showing pictures of cars on roofs.

    http://www.zerohedge.com/artic.....ted-blow-p

  • Night Elf Mohawk||

    Let the "we aren't broke" people cast the first stone on that one.

  • Fluffy||

    That's fair.

    But the two are slightly different.

    The "We aren't broke" people aren't saving face, they're trying to make sure that checks kept getting cut.

    The Japanese nuke plant people keep underestimating the severity of their situation, and it's starting to look to me like a scene out of Bridge on the River Kwai. Except with fallout.

  • Night Elf Mohawk||

    I'm not entirely sure they aren't lying to save face. Sure, some of it is as simple as wanting the checks to keep getting cut but I think a lot of it is trying to avoid facing the impending ramifications of a "we just need to spend more" worldview.

    It would be suboptimal if the face-saving of the nuke people caused people to be harmed by relying on it but that doesn't change that it seems pretty admirable that they didn't go all Mad Max or Lord of the Flies as soon as the shaking and water were (mostly) gone.

  •  ||

    Just for kicks, compare the Japanese reaction to Japocalypse™ with New Orleans residents' reaction to Katrina.

  • Realist||

    Hmmm, let's see what does New Orleans have in spades that Japan doesn't???

  • racist||

    Spades?

  • ||

    Only time will tell who, if anyone, is lying. From what I've read, none of the nuclear plant problems are unanticipated. They'd hoped to avoid them, of course, and they may have thought they were successful until circumstances proved them wrong.
    Unsurprisingly, most of the mainstream news reports are sensationalistic and uninformed. The people who know exactly what's happening are too busy doing their jobs to go on CNN right now. So instead we get helpful TV scientists talking about Three Mile Island as though it was Nagasaki, and The China Syndrome as if it were a documentary. Mention "radiation" and some people start hyperventilating and stop thinking - and your typical journalist barely thinks even under the best of circumstances. Personally I'd be a lot more worried about dying from cholera or infected wounds.

  • Realist||

    I get my news from Fluffy...he knows everything!
    What's really going on Fluffy???

  • Montani Semper Liberi||

    Bahrain's president just declared a 3 month state of emergency. According to the BBC, "The nation's armed forces chief has been authorised to take all measures to 'protect the safety of the country and its citizens'". Oh, and a Saudi soldier was killed by protesters. The oil is about to hit the anus.

  • Fluffy||

    Ooooo, a Senatus Consultum Ultimum!

    Those always end well.

  • Tim||

    Well they can take the Obama approved route and follow Mubarak into oblivion or they can take the Qaddafi route and kill their way back to stability.

  • Tim||

    IT'S THE END OF DAYS!!!!!!!!!!!!!!!

    RUN AWAY!

  • ||

    Just BTF[ukushima]D!!!

  • Fundie||

    Are you RAPTURE READY?

  • Martin McCullough||

    So a Soviet handler takes classified info from his mule/spy and hands it over to our enemy and he is a spy. But Assange takes classified info from his mule/spy and disseminates it to ALL our enemies, and he is a journalist? That doesn't pass any logical muster. So any spy/terrorist/saboteur who opens up a $20 website is free and clear? If he were an American citizen he is due a trial by a jury of his peers. Since he is not a citizen, he is due some interviewing in Guantanamo.

  • Fluffy||

    I hope you die in a terrorist attack. I really do.

  • Realist||

    Fluffy you've got kind of a mean streak, there!

  • ola||

    "Vice President Joseph Biden agrees."

    Well there you have it.

  • Tony||

    Agree with the subtitle... probably due press freedoms, but he's no journalist. Journalists aren't supposed to have an agenda. James O'Keefe isn't a journalist either.

    I don't get it. We're just all supposed to agree that the type of society we want is one with no state secrets? Sounds like a hamfisted libertarian concept of freedom, complete with self-righteousness. What pisses me off most about Assange is what cultist he's turned Glenn Greenwald into.

  • ||

    But Assange the NYT/NPR/ABC/CBS/NBC/Fox/CNN/MSNBC/LATimes/WSJ takes classified info from his mule/spy and disseminates it to ALL our enemies, and he is a journalist? That doesn't pass any logical muster.

    Rinse and repeat:

    Journalists aren't supposed to have an agenda.

  • ||

    But Assange the NYT/NPR/ABC/CBS/NBC/Fox/CNN/MSNBC/LATimes/WSJ takes classified info from his mule/spy and disseminates it to ALL our enemies, and he is a journalist? That doesn't pass any logical muster.

    Rinse and repeat:

    Journalists aren't supposed to have an agenda.

    Stupid HTML.

  • Realist||

    How many times are you going to run the same stupid shit? How about something current?

  • ||

    Quote of the Week:
    We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people. -John F. Kennedy, 35th US president (1917-1963)

  • Ron||

    I don't think we need to show a direct conspiracy between Assange and the private since Assange actively request people to bring him classified documents a type of conspiracy before the fact. This is no different then a person creating a web site to search out for assassins, which is illegal.

  • ||

    Either everybody is a journalist, or nobody is. The idea that there is a distinction is bizarre in itself, but the idea that any such distinction is well-defined is crazy. To establish a special class of people who are entitled to some constitutional protection not available to others is flat wrong.

  • ||

    agree 1000%. At the time of the constitution there were "pamphleteers" which were the equivalent of today's reprobate, rapscallions, rascals, reason commentators, and blogs. You don't have to own a multimillion dollar business to enjoy freedom of speech and the freedoms guaranteed therein.
    You don't even need to write anything - just a big mouth or your fingers (I mean sign language!)

  • ||

    "The most obvious statute to use in prosecuting Assange is the Espionage Act of 1917, which makes it a crime, punishable by up to 10 years in prison,to “receive,” “deliver,” “transmit,” or “communicate” any “information relating to the national defense” that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”

    Hmmmmmm....I wonder if McNamara, or McGeorge Bundy could have been prosecuted under the law, because whoever ordered the Pentagon Papers they certainly caused "delivery" and "transmittal" and they certainly "has reason to believe could be used to the injury of the United States" - which why it was so important to keep them secret.
    Are the problems in Iraq due to secrets or do to bad decisions to begin with?

  • Gregory Smith||

    If Assange is a journalist, I'm a typewriter.

    http://libertarians4freedom.blogspot.com/

  • ||

    Greg, you are showing your statist ways, once again. The framers wanted us to have nothing but disdain for all those who would sacrifice liberty for the sake of the state. Such folk are PUSSIES.

  • ||

    Gregory Smith Typewriter... has a certain ring to it.

  • James Street||

    A lot of liberals will become terrorists if Julian Assange is convicted of terrorism because they believe what he did is NOT terrorism. It's simple logic.

  • ||

    there are countless other issues that make liberals domestic terrorists

  • Gregory Smith||

    Good! Then we'll get to practice our markmanship skills with liberals.

  • James Street||

    America has bifurcated into politically correct thinkers, no matter how sophisticated, and simple thinkers, no matter how stupid and uninformed.

    Everyone knows this who has ever walked into a corporate job, a government job, a political campaign, or any group that tries to present a united front to other groups and people.

    But politically correct thinking rarely rises above propaganda, advertising, cheer leading or simple lying for gain.

  • ||

    I have not understood how Assange could be charged with breaking US law if he was not in the US when he supposedly broke US law. Are our laws valid in other countries? Even in the US, I cannot be arrested in Texas for doing something in Texas that is illegal in New Mexico. Does someone have an explanation?

  • ||

    So if I go to Mexico, then electronically transfer all of your money from your bank account, I'll be in the clear? Great! Let's get started

  • David Cay Johnston||

    Sullum gets this exactly right:

    ** "for constitutional purposes, it does not matter whether Marc Thiessen, Attorney General Eric Holder, or anyone else considers Assange a journalist.

    “Freedom of the press” does not mean the freedom of those individuals who are lucky enough to be officially recognized as members of the fourth estate. **

    Journalists are just members of the body politic whose focus is (or should be) on watchdogging government and other institutions. We provide a focused voice, but not a privileged one.

    WashPost columnist Marc Thiessen confuses issues with his argument that Assange is a criminal and not a journalist.

    Many governments in history have considered journalism a capital offense, but under our Constitution we all have the right to speak, publish, worship or not, gather peaceably and petition government without prior restraint and with only limited sanctions after the fact (like shouting fire when there is none in a crowded theater if it results in harm).

    Only in matters of administrative convenience should journalists get some exceptional treatment, as with California's law allowing reporters to go into evacuated areas at their own peril, having a pool reporter (chosen by reporters themselves) cover events in places where a venue is small and the like.

    The First Amendment principles apply equally to all of us. No one should understand that better that journalists.

  • ||

    The spooks should hire one of their brit Blackwater-contractors from Iraq - they used to have a couple ex-SAS mercenaries on the payroll - and let him put a 9mm bullet through the head of that asshat Assange. That's the most cost-effective way to deal with that particular loose cannon.

    Stop the leaking - shoot the leakers!

  • ||

    Only one thing applies here " Don't shoot the messenger" Any crime belongs to any one charged with security

  • mbtshoesbest||

    awesome. your post is great. its worth reading. thank you.

    http://www.mbtshoesbest.com

  • sophie||

    Last quote heard from Toni’s dad after abruptly leaving for good upon hearing that his wife was pregnant with their one and only child.

  • nike shox||

    is good

  • cc||

    If you grew up like I do using a romantic eyesight of what my wedding party ought to be like, then no make any difference how quite a few issues there are to request yourself, you're positive of a single thing, it requirements being perfect. these days not everybody seems as worried about discovering the great Wedding Dresses, but for the vast majority of us - deep within - it actually does matter.

    As quickly when you start preparing or even the large day, deciding on your wedding party attire gets an urgent require for most brides. Nobody would like to wait. even though dealing with wedding party strain and preparations, be positive to enable your self a lot of time to attempt on completely different designs and discover the a single who says "you".

    The theme of your wedding party would be an significant place when choosing that unique dress. have you been obtaining married for the beach? If so, you may pick a gentle airy style. Have you made the decision on the formal affair? Then by all means, go all out and put on a light attire covered in silk and lace. what ever kind of celebration your wedding party will be, your attire will perform among the most significant roles in it!With the cost of weddings, some couples attempt and minimize back again by creating their personal flowers, or purchase some wedding dress in a specialized dress shop at a high price, but why don't you try to buy a cheap wedding dresse online directly. Where you can also purchase your ideal wedding dress and some new fashions. whatever style, colour or cost variety you sooner or later choose on when deciding on your wedding party dress, don't neglect that it's you your fiancé fell in adore with, not your dress. The attire adds towards ambiance from the day, however it isn't the genuine centerpiece.

    After you have selected your wedding party attire hang it inside bag it arrives in and don't display it to everybody. Give company a thing to start looking forward to once they see you for your initial time walking along the aisle. And unless it is really unavoidable, don't allow your potential husband see your attire whatsoever prior to the wedding. They say it's poor luck as well as if that's merely a superstition, it definitely does spoil his surprise!

  • aluma wallet||

    The products I helped redesign are still on the market with even newer uses. Because of me, they're also far more reliable and stable than their prototypes.

  • xiingguan||

    This movie has some lebron 9 for sale of the same flaws I saw in another attempt at a faithful adaptation of a work of fantastic literature long thought unfilmable, Zach Snyder’s 2009 version of Watchmen...That is, it lebron 9 china for sale struck me as a series of filmed recreations of scenes from the famous novel

  • xiingguan||

    asdvgasvcasv

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement