Free Press

New Julian Assange Indictment Crushes the Hopes of Journalists Who Thought Their Press Passes Would Save Them

Don't believe the Justice Department when it reassures journalists that the WikiLeaks founder is uniquely guilty of violating the Espionage Act.

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Any hope that professional journalists may have had that the Justice Department's prosecution of WikiLeaks founder Julian Assange would leave them and the First Amendment unscathed was decisively crushed by the indictment unsealed yesterday. While DOJ officials are still trying to assure reporters that the Trump administration values and respects their work (I know), it is now abundantly clear that the case against Assange is an unprecedented, sweeping, and deeply dangerous assault on freedom of the press.

"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, the head of the Justice Department's National Security Division, told reporters yesterday. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."

That distinction is not only debatable but constitutionally irrelevant, since "freedom of the press" refers to a method of mass communication, not a professional guild. It belongs to all of us, not just to people employed by respectable news organizations. Yet some of those people have endorsed this bogus distinction because they despise Assange, think their professional status and standards give them special privileges, and vainly hope their press passes will save them.

Assange, CNN contributor Frida Ghitis wrote last month, "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 echoed that sentiment, endorsing the view that Assange is "a sociopathic interloper operating under the protection of free speech." Real journalists, she said, 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."

The indictment highlights details that reinforce this view, noting that WikiLeaks published unredacted versions of Pentagon war documents and State Department cables that included names of informants who foreseeably could be arrested or killed once their identities were revealed. That kind of unethical sloppiness is indeed troubling, but it is not a necessary element of the charges Assange faces.

Counts 9 through 17 involve "disclosure of national defense information," a felony punishable by up 10 years in prison. That penalty applies to anyone who "willfully communicates, delivers, transmits or causes to be communicated" such information to "any person not entitled to receive it." This felony is the bread and butter of any journalist who covers national security issues and publishes information that the government would prefer to keep secret.

As First Amendment scholars have noted, that statute squarely applies to indisputably valuable journalism such as publication of the Pentagon Papers, the secret history of the Vietnam war that gave rise to the landmark 1971 Supreme Court case New York Times v. United States. In that decision, the Court unanimously ruled that the government could not prevent publication of stories based on the Pentagon Papers. But it did not address the question of whether publishers, editors, and reporters could be prosecuted after the fact. That is the question posed by the Assange indictment, no matter how much the Justice Department wants to pretend otherwise.

Count 1 alleges that Assange conspired to receive national defense information, and Counts 2 through 8 allege that he obtained it, all of which are likewise felonies punishable by up to 10 years in prison. Again, the indictment plays up conduct that most professional journalists avoid, such as publicly soliciting classified material (on the WikiLeaks website) and offering to help a source conceal his identity by cracking a government password. But these crimes do not require such unusual tactics. Any reporter who talks to a source with access to classified information, arranges to receive that information, and promises the source confidentiality is guilty of violating those provisions.

New York Times reporter Charlie Savage, who covers national security issues, understands all of that. "The New York Times, among many other news organizations, obtained precisely the same archives of documents from WikiLeaks, without authorization from the government—the act that most of the charges addressed," he notes. "While The Times did take steps to withhold the names of informants in the subset of the files it published, it is not clear how that is legally different from publishing other classified information."

Nor does it matter that most people recognize New York Times reporters as legitimate journalists. "For the purposes of press freedoms," Savage writes, "what matters is not who counts as a journalist, but whether journalistic activities—whether performed by a 'journalist' or anyone else—can be crimes in America." Savage quotes Jameel Jaffer, director of Columbia University's Knight First Amendment Institute. "The charges rely almost entirely on conduct that investigative journalists engage in every day," Jaffer says. "The indictment should be understood as a frontal attack on press freedom."

The Justice Department is hoping to blunt the backlash against that attack by picking a widely reviled figure as a test case. But anyone who actually believes in civil liberties understands that they mean nothing if they can be violated when the target happens to be unpopular. Just as the ACLU is not endorsing the views of Nazis or Klansmen when it defends their First Amendment rights, you don't have to like Assange (or believe he is a real journalist) to recognize the importance of the principle at stake in his case.

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  1. Unfortunately all these people coming out of the woodworks talking about “Rule of Law” don’t really mean it, or they’d be decrying this.

    1. Of course they don’t mean it. Look at the story in San Fransisco where the cops terrorized the journalist who printed the “confidential” police report on the death of some local poobah showing that he died of a drug overdose while with his mistress. That is a no shit assault on the media. Yet, no one seems to care.

      1. They only care when it’s done by the opposite team. If Hillary was elected they would have went back to sleep.

  2. >>>the law—and democracy—demand for legitimate journalists

    hey Frida Ghitis do you know of any legitimate journalists?

  3. You out the government at your peril. Perhaps we will at least get a clear message from this, as to where things stand in regard to anyone or group that wants to inform us of questionable if not downright illegal government activities.

    1. Best take I have heard is I think from Dave Smith:

      Those who commit war crimes walk free while those who expose war crimes are imprisoned.

      What a country!

  4. Certain players in the journalism industry do not hold that press freedoms only apply to some official journalist guild because they hate Assange, but because they actually mean it and have for a long time. That had been the New York Times editorial position to oppose the Citizens United ruling, because CU was not a journalistic enterprise in their view and overturning the ruling would not apply to them.

    The mainstream press is not going your friend here, not least because WikiLeaks embarrassed the Democrats in 2016.

    1. The truth is that the last thing established journalists want is a free press. A free press is nothing but competition. Don’t believe a word of it when journalists claim to want a free press.

      What journalists want is money and respect. And the best way to have that as a journalist is to be part of a state run media. Journalists in the old communist states were widely respected and well paid. All they had to do was toe the party line. That is the world most journalists want to live in if they are being honest.

      1. Journalists are a self-selected group here-mainly well paid, well-credentialed elitists who serve their masters in politics, academia, and certain industries, including media (themselves). If Assange leaked something bad about Trump that they thought had helped Hillary win, he would be their hero and worthy of being called a “journalist”

      2. In all fairness, journalists in communist societies were never respected. They were always seen like the spineless hacks they were. It was much more respectable to be a first grade teacher, at least you didn’t have to eat crap by the ladle-full every day.

  5. Journalists are the worst.

  6. The Obama Administration, terrible as it was on civil liberties, did not indict journalists for receiving classified information. Ah, the good old days! Also, disappointing that “libertarian” lawyer Eugene Volokh is totally down with the indictment. Guess his reading of the Constitution hasn’t gotten as far as the Amendments yet.

    1. Assange is not being indicted for receiving classified information either.

      The gov thinks he was involved in the theft by helping Manning hack a password, and by encouraging the theft.

      1. Don’t confuse him with the facts.

        Obama was terrible to independent journalism and a free press. FULL STOP.

      2. Being a journalist doesn’t entitle anyone to steal classified material. If Assange was an active participant in such activity then he is in a lot of trouble.

    2. “The Obama Administration, terrible as it was on civil liberties, did not indict journalists for receiving classified information.”

      Except the Obama Administration IS the one that brought these charges against Assange. The charges have been sealed because we has not in custody. Once he was in Custody they unsealed the charges.

    3. Hey alan… these documents were drafted under Obama. Snowden also has a sealed indictment. But you stay in fantasynland since it fits your narrative

  7. serious question: how does the US even have jurisdiction? this is a non-citizen committing a crime abroad.

    1. Where does an 800 pound gorilla have jurisdiction?

      1. Yeah, that’s what I thought. But I was wondering if there is even an attempt at explaining why the US has jurisdiction here.

        1. I’ve been having trouble wrapping my head around this same thing, but then I remembered that citizens have been drone-striked so…

          1. Garbage Island obeys

    2. I’m waiting for the realization that if this precedent stands, no CIA analyst may ever take a vacation abroad.

  8. The indictment is bullshit. Assange is a hero.

    -jcr

  9. If the president was a democrat and Assange leaked stuff from the RNC, Assange would be folksy hero right now.

    He sealed his fate when the hacked the DNC.

  10. I oppose the jailing of “journalists” for leaking government information – but think tar & feathering would be appropriate for a first offense, horse-whipping for a second.

  11. ok, we need Gabbard 20/20

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  13. One would think that a story about Trump declassifying thousands of classified documents would be in a similar realm to the Assange story… but reason remains quiet on that news.

  14. […] –Regardless of what people think of Julian Assange and Wikileaks, there are good reasons to be suspicious regarding the indictments against him. Mainly because they seek to punish him, in effect, for […]

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