Free speech threat seen in prosecuting WikiLeaks’ Assange

In a divided Washington, few causes have as much bipartisan support as prosecuting WikiLeaks founder Julian Assange.

Many Democrats seethed when the radical transparency activist humiliated Hillary Clinton by publishing the content of her campaign chairman’s inbox. Most Republicans haven’t forgiven Assange for his publication of U.S. military and intelligence secrets. Much of the American media establishment holds him in contempt as well.

But academics, civil rights lawyers and journalism groups worry that an attempt to put Assange behind bars could damage constitutional free speech protections, with repercussions for newsrooms covering national security across the United States.

“This isn’t about Julian Assange, this is about the First Amendment and press freedom,” said Elizabeth Goitein, who co-directs the Liberty and National Security Program at the Brennan Center in New York. “You can’t support First Amendment freedoms and still support the government chipping away at those freedoms of people you don’t like.”

U.S. officials clearly have been itching to get their hands on the 47-year-old ex-hacker for some time; he has been a thorn in Washington’s side for almost a decade. And Assange’s longtime claim that prosecutors secretly were preparing charges against was vindicated late Thursday when his name accidentally surfaced in an apparently unrelated legal filing.

A person familiar with the situation confirmed that charges against Assange have in fact been filed under seal. The person spoke to the Associated Press on condition of anonymity because the charges have not been publicly announced.

“A very black day for journalism,” is how WikiLeaks’ recently appointed editor-in-chief, Kristinn Hrafnsson, described the development during a brief interview in Reykjavik, Iceland.

The American Civil Liberties Union and a host of other groups have also voiced their disquiet.

The nature of the charges isn’t clear. Until recently, most discussions of prosecuting WikiLeaks involved the Espionage Act, a century-old law that was used to imprison former Army private Chelsea Manning, arguably WikiLeaks’ most important source.

But the act has been used so far to prosecute sources who had sworn an oath or signed a non-disclosure agreement – not publishers.

The Justice Department “has drawn a line between the people who actually steal or leak information and people who publish it,” Goitein said. “To extend that line to include people who have never in any way signed away their First Amendment rights is incredibly dangerous.”

Few discussions of Assange are complete without hand-wringing over whether he qualifies as a journalist. Assange insists that he is, and Hrafnsson called WikiLeaks “a legitimate journalistic organization.” Others, such as former FBI Director James Comey, have argued the opposite, calling it a publisher of “intelligence porn” and “a conduit for the Russian intelligence services.”

Goitein says such distinctions are irrelevant when it comes to free speech rights.

“The First Amendment doesn’t use the word ‘journalism’ and it doesn’t apply only to journalists. The First Amendment protects anyone who publishes information, regardless of whether they carry the mantle of journalism,” she said.

Bastiaan Vanacker, program director for the Center for Digital Ethics and Policy at Loyola University Chicago, said it was the difficulty of separating WikiLeaks from more traditional media outlets that convinced the Justice Department to shy away from pursuing Assange more aggressively during Barack Obama’s presidency.

“I think the Obama administration had it exactly right,” Vanacker said. “It’s just too difficult to make that distinction.”

He cautioned that the leak of the sealed charges didn’t necessarily mean the Trump administration was taking a tougher line.

“It’s very well possible that there are new facts that came to light that perhaps would give a stronger case for prosecution,” Vanacker said.

In particular, he wondered if the government was pursuing Assange in connection with his publication of CIA surveillance software beginning in March 2017, something Vanacker speculated WikiLeaks might have tried to leverage in a bid to secure favorable treatment from President Donald Trump.

A similar possibility occurred to independent journalist Marcy Wheeler, who noted that Assange tried to negotiate a deal with the Trump administration shortly before the CIA files started leaking.

An extortion-related prosecution would still be bad news for Assange, of course, but as far as journalism in general, “that would not be as dire,” Vanacker said.