For decades, the American press has reported damning government secrets, shined a spotlight on abuse and held accountable the nation’s highest leaders. It has done these things under the protection of the First Amendment and a firm belief that Americans deserve to know the truth.
Journalists have sought the truth by receiving and reporting information that would otherwise be kept secret. Media have published material lifted from leaked documents — some of which the government deemed classified.
Yet no journalist — self-described or otherwise — had ever been criminally charged for disclosing government secrets. That changed Thursday, when the Department of Justice filed an indictment against Julian Assange. It lobbed 17 new charges at the WikiLeaks founder under the Espionage Act, accusing him of soliciting, receiving and publishing hundreds of thousands of leaked documents in 2010, methods that journalists employ frequently in service to their mission.
The Espionage Act is at the heart of the Justice Department’s indictment. It was passed in 1917 during World War I but has been modified several times since then. It originally focused on actions during war; specifically, the act sought to discourage antiwar efforts, or any action that appeared to aid the adversary, by criminalizing the disclosure of government secrets.
The Espionage Act has been invoked only a handful of times to prosecute officials or contractors who leaked information and — even after a major revision that broadened its scope beyond war activities and removed the requirement of intent — exclusively against nonmembers of the press. The act has been applied only rarely to media and, in those cases, unsuccessfully.
Even with the publishing of the Pentagon Papers, no journalist was indicted or even charged under the act, despite the great lengths to which the Nixon administration apparently went to investigate the New York Times and Washington Post reporters at the heart of the story.
Yet the act offers no specific protections for journalists, nor does it acknowledge the idea of freedom of the press, according to constitutional experts. There is no bar to prosecuting reporters under espionage.
The original indictment, filed in March, targeted alleged behavior that did not veer into the fiercely protected freedom of the press. It argued Assange conspired with Chelsea Manning to hack government computers, specifically by helping the former U.S. Army intelligence analyst crack a code to access a classified database, prosecutors allege.
Thursday’s revised indictment went even further, seeking to punish Assange for allegedly soliciting leaks, receiving information from sources and publishing classified information.
According to the criminal statute, only people with authorized access can be a “leaker,” giving the information to someone unauthorized. Assange never had authorization, (and thus by law could not leak it) but Manning did. She was found guilty of multiple counts, including violations of the Espionage Act, and sentenced to 35 years in prison.
The new indictment also alleges Assange published unredacted information and risked the safety and freedom of many people, including government sources and individuals promised anonymity.
Assange’s refusal to engage in the rudimentary protections the press typically establishes makes him “the most outrageous violator of journalistic norms,” said First Amendment attorney Floyd Abrams, who represented the New York Times in the landmark Pentagon Papers case New York Times Co. v. United States.
But even though Assange presents a particularly painful example of journalistic misconduct, his ethics have no bearing on whether the Espionage Act is or is not invoked against him, Abrams said.
A slippery slope, press advocates argue, is greased by charging reporters under the most basic premise of the Espionage Act. The statute very simply focuses on the nature of the published information — is it a government secret? — and whether the individual disclosed, possessed or received it. Responsibility or intent is not relevant.
The question for the court and a potential jury is: Do Assange’s alleged actions warrant more than just ethical criticism and should courts interpret the law to criminally penalize him?
Abrams looks to Supreme Court Justice John Marshall Harlan for clarity and precedent. Harlan described the Espionage Act as “a singularly opaque statute” in his Pentagon Papers opinion. The law is vague enough that a government set on prosecuting the press could easily apply it even to journalists’ most ethical actions.
“Once we start down the road of applying the Espionage Act where newsworthy but harmful information is acquired from government sources, some of the most important journalistic efforts may be put at risk,” he said.
Stuart Karle, former general counsel for the Wall Street Journal and the former chief operating officer of Reuters News, warned of other perils stemming from Assange’s prosecution: It could fundamentally change how the press communicates.
Journalists, Karle said, don’t need to solicit; leakers know which reporters to go to by drawing inferences from a body of work. Charges like those brought against Assange will build a system where journalists will worry that simply reporting on a topic may be misconstrued, as Karle puts it, as “being in cahoots with the leaker, or enticing the source.”
And it’s not as if Assange’s prosecution will stop leaks of classified information. They “will be made in a much more reckless way,” Karle said, creating a “dangerous” precedent for both sides.
For an individual who wishes to leak classified information, Karle argues, “this prosecution basically says: you might as well publish the stuff yourself.”
At the bottom of the slippery slope, Karle said, where there are no protections for engaging in an ethical relationship between journalist and source, why bother blowing the whistle in the first place?