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.