Press Can't Force Government to Disclose Whether Julian Assange Has Been Charged With a Crime, Judge Rules

After the WikiLeak's founder's surname appeared in an unrelated court filing, the Reporters Committee for Freedom of the Press asked the court to unseal judicial records related to a suspected criminal prosecution.
Courtesy of Praxis Films
Julian Assange

The Reporters Committee for Freedom of the Press was premature in its request for an order forcing the U.S. government to unseal judicial records it believes are related to a criminal prosecution of WikiLeaks founder Julian Assange, a Virginia federal judge has ruled.

The Committee's Nov. 16 motion came after the press caught wind of a government filing in an unrelated criminal complaint that twice referred to a person named Assange, who otherwise hadn't been mentioned the complaint. In that case, which sought to prosecute a Virginia man named Seitu Sulayman Kokayi for coercing a minor, the government asked the court to seal the complaint because "Another procedure short of sealing will not adequately protect the needs of law enforcement at this time because, due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged."

That filing continues to argue the complaint and related documents would need "to remain sealed until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition in this matter."

When the Kokayi motion became public, news outlets noticed the Assange references and inferred the WikiLeaks founder was facing criminal charges. 

In the government's opposition to the motion at hand, it characterized the references to Assange as "unintentional error." 

In considering the committee's motion, U.S. District Judge Leonie Brinkema weighed the government's need to investigate and prosecute criminal activity against the public's right to access judicial records. Ultimately, she sided with the government — for now. 

"What makes this case unique is that the Government has not acknowledged whether formal charges have been filed against Assange, and the Committee has not cited any authority supporting the notion that the public has a right to require the Government to confirm or deny that it has charged someone," writes Brinkema.

In a footnote, the judge explains the Committee can't force the government to disclose whether Assange has been charged because "the fact of whether charges have been filed is not a 'judicial record' in the first place."

"Accordingly, the question is how the Court should analyze a request for public access to a charging document where there has not been a sufficiently certain disclosure that charges have been filed," writes Brinkema.

The answer? The ripeness doctrine. Until there's a sufficient disclosure that Assange has been charged, Brinkema finds the Committee's claims are premature. She denied the application without prejudice.

"To hold otherwise would mean that any member of the public or press — by demanding access to judicial records based on little more than speculation — could effectively force the Government to admit or deny that charges had been filed," writes the judge. "Permitting such fishing expeditions would require courts to sort through endless factual permutations giving rise to varying degrees of uncertainty. Courts cannot perform the delicate balancing required by the First Amendment and common law doctrines under such uncertain circumstances."

Read the full opinion, below.