Few Americans are aware that for over a decade the United States government has been engaged in one of the greatest threats to freedom of the press in American history.
On Feb. 20 and 21, the United Kingdom High Court will hold hearings that will decide the fate of investigative journalism as we know it.
Julian Assange launched WikiLeaks in 2006 to publish leaked information exposing corporate and government wrongdoing. In 2010, WikiLeaks published information highly incriminating to the U.S. government, including the shocking “Collateral Murder” video. It showed a U.S. air crew in Apache helicopters in July 2007 slaughtering a dozen civilians in Iraq. The dead included two Iraqis working for Reuters news agency, contradicting U.S. claims that all the dead were insurgents.
In November 2010, The New York Times, the Guardian, Le Monde, El Pais and Der Spiegel published a series of revelations in cooperation with Wikileaks that made headlines around the globe. “Cable gate,” a set of 251,000 confidential cables from the U.S. State Department, disclosed corruption, diplomatic scandals and spy affairs on an international scale. According to the Times, the documents told “the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money.”
In August 2012, Assange was granted asylum in the Ecuadorian embassy in London based on his fears of political persecution. His fears were justified. In May 2019, the Trump Department of Justice unsealed an indictment against him. Eventually he was charged with 16 counts under the Espionage Act of 1917 and one count of computer hacking. All told, if convicted, he is facing a sentence of 175 years in prison.
Assange was expelled from the Ecuadorian embassy in April 2019 and imprisoned in the notorious Belmarsh prison in London, where he remains to this day, pending the outcome of U.S. efforts to extradite him to stand trial in Alexandria, Virginia.
On Jan. 4, 2021, British criminal court judge Vanessa Baraister denied the U.S. government’s request to extradite Assange. Given the fact that he had been confined in the Ecuadorian embassy for seven years and held in the Belmarsh high-security prison since April 2019, the judge found that Assange’s mental condition “is such that it would be oppressive to extradite him to the United States of America.”
But instead of simply accepting that decision and distancing itself from Trump’s unprecedented indictment, the Biden DOJ appealed that ruling and convinced the British higher courts to reverse Judge Baraister. The hearings in London this week are Assange’s last chance to gain his freedom.
On Nov. 28, 2022, declaring that “Publishing is Not a Crime,” the editors and publishers of the five international media outlets that had published the WikiLeaks revelations 12 years earlier released a joint letter calling on the U.S. government to end its prosecution of Assange. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” the letter said. “If that work is criminalised, our public discourse and our democracies are made significantly weaker.”
Editors of major media organizations have decried the prosecution’s chilling effect on the American press. Washington Post Executive Editor Marty Baron said the indictment “undermines the very purpose of the First Amendment.” USA Today Editor in Chief Nicole Carroll has called it a “chilling attack on press freedoms and the public’s right to know.”
According to Jameel Jaffer of the Knight First Amendment Institute at Columbia University, the charges against Assange “rely almost entirely on conduct that investigative journalists engage in every day. The indictment should be understood as a frontal attack on press freedom.”
The indictment alleges Assange violated the Espionage Act by obtaining, receiving, possessing and publishing national defense information and by “recruit[ing] sources” and “soliciting” confidential documents by maintaining a website indicating that it accepts such materials.
But that’s exactly what investigative journalists do every day. They regularly “recruit” and “solicit” sources, use encrypted or anonymous communications channels, receive and accept confidential information and publish it. That is not a crime and it is entitled to the full protection of the First Amendment.
Notably, the Obama DOJ declined to prosecute Assange, reportedly due to “The New York Times problem.” How could the government prosecute Assange but not prosecute the nation’s most recognizable newspaper, which published the very same leaks of national security information?
Advocacy groups point out that countries like China and Russia will seize on the prosecution of Assange as a welcome precedent to use against journalists who publish stories critical of their regimes. Extraditing a foreigner for publishing sensitive information provides cover for nations seeking to target journalists and dissidents, even non-citizens.
For example, the Assange case complicates efforts to condemn Russia’s outrageous persecution of The Wall Street Journal’s Evan Gershkovich. As Freedom of the Press Foundation’s Trevor Timm rightly argues, “the Biden administration’s calls to free Gershkovich would have a lot more meaning if they also weren’t attempting to prosecute a publisher for ‘espionage’ here in the United States.”
In their new book “A Century of Repression: The Espionage Act and Freedom of the Press,” Ralph Engelman and Carey Shenkman call the act “the most important yet least understood piece of legislation threatening the free flow of information in U.S. history.” It does “not permit consideration of the value of leaked secrets to discourse about U.S. policies, the appropriateness of the material’s original classification, or whether the national defense was harmed by a secret’s exposure.”
The prosecution of Assange seeks to break new legal ground. The notion of charging someone not for actually stealing or leaking government secrets but for receiving and publishing them has never been definitively tested in court, because until now the government has never brought such charges.
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According to the Supreme Court, a “free press cannot be made to rely solely upon the sufferance of government to supply it with information.” The court has correctly and repeatedly held that journalists are entitled to publish true and newsworthy information even if their sources obtained or released the information unlawfully. In fact, in order to report some of the most important stories in American history, journalists have relied on sources who broke the law. Using the Espionage Act to prohibit journalists from relying on such leaks would deprive the public of important news reporting.
Democracy depends on a robust, wide-open free press. It is shameful that the Biden administration has fully embraced Trump’s prosecution of Assange and is actively seeking to extradite him to the United States. Publishing information that exposes government wrongdoing is what the First Amendment is all about. The Assange prosecution tests whether we can remain true to that principle. We dare not fail that test.
Stephen Rohde is a writer and civil rights activist who practiced First Amendment law for almost 50 years.