Julian Assange

The Assange Exception to the First Amendment

Freedom of the press is not limited to "legitimate journalists."

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The debate about whether Julian Assange should be considered a journalist, reignited by the WikiLeaks founder's arrest in London last week, gives employees of news and opinion outlets ample opportunity to display their high self-regard and contempt for amateurs who fall short of their lofty standards. But the question is constitutionally irrelevant, because freedom of the press belongs to all of us, no matter where we work or what the journalistic establishment thinks of us.

The same goes for the limits to freedom of the press. The right to use media of mass communication does not give a journalist, no matter how public-spirited or well-respected, permission to burglarize someone's home or office in search of newsworthy information.

On its face, the federal indictment of Assange, which was drawn up in March 2018 and unsealed last Thursday, charges him with a crime akin to burglary: conspiracy to commit computer intrusion. According to the Justice Department, Assange helped former U.S. Army intelligence analyst Chelsea Manning gain unauthorized access to classified files on Defense Department computers.

Except that is not really what happened, since Manning already had access to those files. The thin reed on which the indictment hangs is Assange's unsuccessful attempt to crack a government password, which "would have allowed Manning to log onto the computers under a username that did not belong to her" and "made it more difficult for investigators to identify Manning as the source of disclosures of classified information."

The essence of Assange's crime, in other words, was not hacking computers or stealing secret files but trying to help a source cover her tracks—something news organizations routinely do, just as they routinely publish information that the government does not want revealed. Professional journalists who took comfort from the fact that Assange was not charged with violating the Espionage Act by publishing the State Department cables and Pentagon documents that Manning gave him should think again, since most of the details that the indictment describes as aspects of the conspiracy between Assange and Manning involve actions that reporters consider part of their legitimate work, such as obtaining classified information, secretly communicating with sources, and helping them conceal their identities.

People who get paid for doing that sort of thing are clinging to the hope that their press passes will save them. Assange, writes former CNN correspondent Frida Ghitis, "is not a journalist and therefore not entitled to the protections that the law—and democracy—demand for legitimate journalists."

Washington Post columnist Kathleen Parker notes that Assange's critics view him as "a sociopathic interloper operating under the protection of free speech," an assessment with which she concurs. Real journalists, she says, go through "a lot of worry and process" before they publish embarrassing information that the government wants to keep under wraps. Assange, by contrast, "is not…a journalist, despite his claiming to be, because he isn't accountable to anyone."

This distinction is not just debatable but beside the point. As UCLA law professor and First Amendment scholar Eugene Volokh has shown, the idea that freedom of the press is a privilege enjoyed only by bona fide journalists, however that category is defined, is ahistorical and fundamentally mistaken.

In a 2012 University of Pennsylvania Law Review article, Volokh carefully considered how freedom of the press was understood when the Constitution was written, in the late 18th and early 19th centuries, when the 14th Amendment (which extended First Amendment limits to the states) was ratified, in the late 19th and early 20th centuries, and in Supreme Court decisions since the 1930s. The evidence is overwhelming that the provision was meant to protect anyone who uses the printed word—and, by extension, media such as TV, radio, and the internet—to communicate with the public.

The implication is clear. If prosecuting publishers for revealing government secrets is deemed to be consistent with the First Amendment, self-appointed guardians of journalistic standards will suffer along with the interlopers they despise.

© Copyright 2019 by Creators Syndicate Inc.

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  1. Well duh. Only arrogant idiots think that the press have super extra rights. Also, first. And you know who else published?

    1. Larry Flynt?

      1. Those who publish inappropriate “parody” certainly have no so-called First Amendment “rights,” and there is hardly any difference between criminally ironic “whistle-blowing” in an academic context and unlawful distribution of governmental secrets. See the documentation of our nation’s leading criminal “satire” case at:

        https://raphaelgolbtrial.wordpress.com/

        1. The 1st amendment or espionage charges do not apply.
          Assange is not an American citizen and is not subject to American laws any more that America would extradite an American citizen to Russia for publishing Russian state secrets.
          America has absolutely zero grounds for applying for extradition.

  2. You can’t help a source cover their tracks by breaking the law either. If he did what they allege he made a grave error.

    1. I agree. Perhaps he got a little greedy and crossed the line between a function of the press, and a function of assisting the hacker.

    2. As I understand the allegation, he was trying to help Manning access information he would not have had access to at the time. A side benefit of that of course would have been that it would help cover his tracks, and I am sure that is what his defense attorney will try to argue. Regardless, if the allegations are correct, then he broke laws that are not covered under freedom of speech. So the entire argument is irrelevant.

      1. That accusation is completely unfounded.
        The ‘pentagon papers’ set a precedent. So long as a news outlet obtains the information through a third party (whistle Blower) they cannot be indicted for publishing the information. There is no evidence that Assange helped Manning ‘hack@ any systems.

  3. I wouldn’t consider Assange a journalist. What he does is just an information release. That said, he’s much better at the journalist’s primary role of informing the public and shining a light on the corruption of the powerful. Journalists are not some sort of “better citizen” worthy of privilege. They are just like any other citizen who chooses to dig for information and share it. I think many bloggers, youtubers, and even just reddit posters are a better example of journalism than what you find in most of the mainstream sources.

    1. “What he does is just an information release.”

      What do you think the NYT does? Other than that, plus a dose of bloviation.

      1. At the NYT the journalists write, the editors edit, the publishers publish, the printers print, etc. I would put Assange more on the publisher side of things

        But as Reason notes, the distinction is constitutionally irrelevant, he enjoys the same freedom of the press as anyone else

    2. Julian Assange is a HERO !
      if you pose to think …you would THANK HIM ?

  4. Something to keep in mind by those Trumpbots, some of whom want to “regulate the press” or “open up the libel laws”. Actions like that aren’t really going to affect outlets like the NYTimes or the Washington Post or CNN. They will be directed mainly at the small independent bloggers and journalists, and iconoclastic figures like Assange.

    1. “Something to keep in mind by those Trumpbots”

      Jesus Christ you’re lke an extremely stupid broken record.

    2. Why go partisan here? Just can’t help yourself?

      1. Jeff and “bright” haven’t yet been introduced.

    3. One could say the same about those who want to crack down on “fake news”

  5. So it is legal to commit to conspire to commit fraud and identity theft as long as you can justify it by calling it an act of journalism? I don’t think that is how that works, or even should work.

    1. Also, by suggesting to Manning that he should use someone else identity to obtain the documents Assange was suggesting to implicate another person in Manning’s crime.

      Can one really claim that is ethical behavior for journalism?

      1. “Can one really claim that is ethical behavior for journalism?” What’s your point?

        If he did make that suggestion to Manning, it was a stupid mistake that he might pay for. That’s clearly not the reason that US politicians and press are out to crucify him. But, what does any of that have to do with “ethical behavior for journalism”?

        1. Sullum is making the claim that encouraging Manning to steal the documents under someone else’s name is good journalism practice and therefore should not be illegal despite there being laws against doing that. As well as framing a third person for the crime, do not forget.

          1. Can you send a link to that article? In this one, Sullum is saying that helping them cover their tracks is something that is routinely done. He makes no assertion that this shouldn’t be illegal. Maybe it’s covered in some article, but I haven’t seen suggestion that there was an attempt to frame a third person. I assume they tried to use some kind of “admin” user account.

            And, to you other statement, the question is not “whether what Assange did is good, ethical journalism practice.” The overriding point is that “journalism” has nothing to do with issue. The first amendment protects his right to publish the info.

            1. If he did commit a crime in trying to help cover Manning’s tracks, he may pay for that. But, that is a small sideshow to the reality of why Assange is a target.

              1. That may be. The legal principle that Sullum is promoting is that good journalism practice negates any incidental illegalities done in the course of an act of journalism. Which seems a bit of a stretch.

      2. unethical =/= illegal.

        1. Sullum is claiming that good journalism practice makes an illegal act legal.

          1. The question is whether what Assange did is good, ethical journalism practice.

    2. So it is legal to commit to conspire to commit fraud and identity theft as long as you can justify it by calling it an act of journalism? I don’t think that is how that works, or even should work.

      Yeah. I think Assange should stand trial for his crimes. However, not to defend any of Sullum’s claims or assertions, much like the Russia investigation, Assange is a patsy bordering on being a Red Herring and the trial, while apt, would still be a gross miscarriage of justice.

      Between the hounding of Wikileaks off the internet and out of the country, the Title IX/buyer’s remorse-esque assault allegations, and the commutation of Manning’s sentence, likely a bigger miscarriage than if he just didn’t stand trial or were acquitted.

      Not that good journalism makes an illegal practice illegal but that given the totality of the circumstances, time served. Otherwise, I almost wholly expect Assange to spend more years behind bars for minimally assisting Manning in stealing the documents than Manning got for actually stealing them.

      1. were acquitted

        Out of hand or by dropping the charges that is.

      2. He is hardly a patsy. He knowingly conspired to steal US secrets and spread them in a way that gravely harmed American foreign policy, and endangered American soldiers.

        He needs to be crushed. It is one thing to blow whistles, it is another to reveal things that really should be kept secret – such as the names of foreign informants who are in an active war zone, among others.

        Even irresponsible journalists like those at the New York Times at least try not to identify people who are likely to be massacred along with their families if their identities are revealed.

        Assange deserves to spend the rest of his life in a hole in the ground in the SuperMax prison.

  6. The New York Times and Washington Post suck.

    They print fake news and other forms of bullshit.

    They hire propagandists, not journalists.

    Go fuck off losers.

  7. […] Reason‘s Jacob Sullum tackles the Julian Assange case: […]

  8. Assange, writes former CNN correspondent Frida Ghitis, “is not a journalist and therefore not entitled to the protections that the law—and democracy—demand for legitimate journalists.”

    “Legitimate journalists” would be those licensed and regulated by the Federal Bureau of Journalism, right? The federal agency that oversees journalists to ensure that they’re following ethical standards of truth and impartiality and transparency? The one that fines and sanctions journalists and news outlets when they get the story wrong or report incomplete or misleading information? What, you say there is no Federal Bureau of Journalism that sets standards for the licensing and regulation and oversight of journalists and the media? Why the hell not?

    1. Well, duh, that would lead to all sorts of free speech issues and …..oh I see what you did there.

  9. would have allowed Manning to log onto the computers under a username that did not belong to her

    LOL. By ‘username that did not belong to her’ do you mean ‘Chelsea’?

    The computer was perpetrating a hate crime and Assange was simply advocating on behalf of the poor tranny.

  10. Hey, Reason, what does Assange’s arrest and the charge laid against him have to do with free speech?

    Nothing, that’s what. He’s charged with abetting the theft of classified material. Even then the charge is weak and he’ll probably beat the rap.

    Grow a set of balls and make a good argument for the state not being allowed to have any secrets, because that’s a harder case to make and the reason Assange is being extradited. Quit the adolescent fence-sitting where you get to yell at the old folks while still living in their basement.

    And reinstate the fucking preview button, already.

    1. Agree on all, INCLUDING the PREVIEW button!

  11. It matters not if he is a journalist, and as others have pointed out, the press does not have special rights under the Constitution.

    What matters is that he conspired to commit espionage against the United States, with the intent of hurting our vital national interests.

    Some information he released included names and methods – names (and other identifying information) about confidential sources and other helpers who were foreign nationals helping us at the risk of their lives. No doubt some paid as did their families, and Americans probably died because of the lack of trust this engendered.

    Other information was carefully edited to make the US military look evil – edited by removing exculpatory parts of the video. While this is normal practice by our vile mainstream media, that does not excuse it. Furthermore, as a foreign national, the First Amendment does not apply to him when he commits those acts outside our jurisdiction. Furthermore, he can be and should be considered a foreign espionage agent, given his actions, and given his ties to Russian intelligence organs.

    The charge on the indictment is hopefully not the only he will face. I hope he is tried and convicted of espionage.

    He should rot in jail, as should Bradley Manning, who only got out of jail because Obama gave him clemency, after which he re-offended.

    As an American war veteran, and one who was careful with classified information, the behavior of these creeps is beyond the pale (as is that of Hillary with her emails).

    It is a sad commentary on politics that some of my conservative allies support Manning because he also dished dirt on Democrats. It is a sad commentary that the left loved him for dishing dirt on American war efforts, before they started hating him more recently.

    1. “Furthermore, as a foreign national, the First Amendment does not apply to him when he commits those acts outside our jurisdiction.”

      The First Amendment does not apply to any individual or group of individuals. It applies to the US Government, forbidding it from restricting nearly all speech. By anyone. Read it.

      Second, if Assange is outside of American jurisdiction, they have no legal claim on him.

    2. Of course the press has special rights under the Constitution. You can even make it more specific. The institutional press has special rights under the Constitution. The broader protection you seek to extend to every Tom, Dick, and Harry with a keyboard is not press freedom, but speech freedom.

      Those are often conflated, especially by folks who have no idea what distinguishes the practices of an institutional press from TDH. But the distinction does matter. The 1A, with its press freedom clause, singled out the institutional press for special protection. If it hadn’t done so, there would be no point having it, because speech freedom would cover everything.

      Before you get outraged, note two things:

      1. It’s good for everyone that the institutional press is protected. Otherwise government would surely single it out for special controls, and nobody would ever learn anything worth knowing about government.

      2. Your personal rights are in no way diminished by special protection for an institutional press. Your rights are increased, because you too are at liberty to create an institutional press, and receive press protection, to add to your private speech protection.

      Folks who insist otherwise, such as Mesoman, are generally folks who are hostile to the larger and more successful organizations among the institutional press, because they don’t like what those publish. However inchoate, that is an impulse toward censorship, not toward press freedom.

  12. Are John and Tulpa sockpuppets controlled by the same person?

  13. Receiving stolen property (fencing) is still illegal the last time I looked.

  14. Is it just me, or does the order of the articles seem totally random now?

    Yahoo News, here we come.

  15. […] are always eager to obtain information that can be used against the other side, and they have the same First Amendment right to share that information with the public as news outlets do, even if the information was […]

  16. […] are always eager to obtain information that can be used against the other side, and they have the same First Amendment right to share that information with the public as news outlets do, even if the information was […]

  17. The thin reed on which the indictment hangs is Assange’s unsuccessful attempt to crack a government password, which “would have allowed Manning to log onto the computers under a username that did not belong to her” and “made it more difficult for investigators to identify Manning as the source of disclosures of classified information.”

    The essence of Assange’s crime, in other words, was not hacking computers or stealing secret files but trying to help a source cover her tracks—something news organizations routinely do, just as they routinely publish information that the government does not want revealed.

    Normally, the tracks the journalists assist in covering are those leading to the journalist, not the tracks leading to the scene of the crime. Journalists who assist in covering the latter are rightly prosecuted.

  18. This article is dated 4/17. Today is 4/23. Why is it at the top of the “latest” heading?

    Our entire social media hardware, software technology and environment has developed into spying on us to know us better than we know ourselves to have power over us.

    Our individual actions are anticipated and manipulated with propaganda. From the fast food you crave to the news you see.

    More and more websites, like this one, manipulate their pages to show individual readers what they want to see and censor them from seeing what someone doesn’t want them to without the reader ever knowing.

    This is the new social media propaganda machine.

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