New Julian Assange Charges Set Up First Amendment Showdown

An indictment against the WikiLeaks founder details activity that could be applied to many journalists and documentary filmmakers.
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Julian Assange

For the first time in the nation's history, the U.S. government has charged a publisher with espionage. Soon the question may become whether the media pays for the supposed sins of WikiLeaks founder Julian Assange.

When Assange was first charged back in April, there was some gnashing of teeth by some in media law circles, but overall, any concern that Assange's prosecution would become a broadside against press freedoms was muted due to the modesty of the initial indictment. In the original version, Assange was accused of conspiring with a source — Chelsea Manning — to hack into government computers. By focusing on illegal activity in the procurement of sensitive material rather than later dissemination of such material, the government appeared poised to sidestep the most fearsome First Amendment issues.  

No longer.

On Thursday, a federal grand jury returned an 18-count superseding indictment against Assange that ultimately seeks to hold him accountable for publishing State Department cables, Iraq War logs, assessments of Guantanamo detainees and other materials.

As a result, the Trump administration is now on a collision course to test who can be liable under a century-old espionage law.

The indictment details activity that could be applied to many journalists and documentary filmmakers.

According to the charging document, Assange and WikiLeaks "repeatedly encouraged sources" to leak classified information. Assange, WikiLeaks affiliates and Manning are said to have "shared the common objective to subvert lawful restrictions." Assange "revealed" information that put individuals at risk. He did so knowingly, says the government.  He caused his source to obtain information "with reason to believe that the information was to be used to the injury of the United States or the advantage of any foreign nation." And he took steps to mask the identity of the source.

Assange is still in the U.K., and he faces deportation requests from both the U.S. and Sweden.

Should he eventually arrive in a Virginia federal court, he'll likely point to Supreme Court precedent whereby the publication of legally obtained materials is protected even if the information itself was intercepted unlawfully by someone else. He may even argue that the Espionage Act is facially unconstitutional if it chills the free flow of information of public concern.

The government may answer by stressing Assange's cultivation of leaks and a publication from a foreign actor that harmed national security. While the government may attempt to distinguish Assange from most journalists, many see high stakes amid Trump's high appetite to attack a free press for publishing unflattering reports about his administration.

Says Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, "Any government use of the Espionage Act to criminalize the receipt and publication of classified information poses a dire threat to journalists seeking to publish such information in the public interest, irrespective of the Justice Department’s assertion that Assange is not a journalist."