The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, news reports indicated that the Justice Department is considering whether to press charges against Julian Assange and WikiLeaks for posting classified information on the Internet. Section 793(e) of the Espionage Act makes it illegal for anyone with "unauthorized possession" of "national defense information" to "willfully communicate" such information "to any person not entitled to receive it" if the person "has reason to believe" the information "could be used to the injury of the United States or to the advantage of any foreign nation." This language is incredibly broad and, if applied as written, raises serious First Amendment concerns. As Steve Vladeck noted on Twitter, using the Espionage Act in this way would set a troubling precedent.
The Trump administration is not the first to consider using the Espionage Act to prosecute those who disclose embarrassing national security information. The George W. Bush administration considered prosecuting journalists for publishing information about surveillance and other counter-terrorism activities. At the time, I co-authored an article with Michael Berry for National Review Online explaining why such prosecutions would be a bad idea (with a follow-up here).
If someone can be prosecuted for communicating classified national security information, all sorts of constitutionally protected activity would be threatened. Journalists and policy advocates routinely repeat national security information to others. It is one thing to prosecute those who, when given lawful access to such information, violate the terms and conditions upon which they were given access and leak classified information. It is quite another those to punish those who repeat such information, or even (as in the case of Assange) post it on the Web.
It is certainly possible that any such prosecution would be based upon allegations that Assange specifically encouraged Chelsea Manning or others to disclose classified information. Such allegations, if proven, might serve to distinguish Assange's behavior from routine efforts by journalists to obtain information from their sources. On the other hand, 793(e), as written, does not seem to require prosecutors to prove such actions were undertaken, and even then, it's likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?
It's understandable why the federal government is upset with Assange and others who obtain and disseminate national security information. Such concerns are best addressed by undertaking more serious efforts to prevent such information from being leaked in the first place, not by threatening prosecution of those who publicize the information once it has been leaked. The former may help keep our nation safe. The latter is a threat to our liberties.