Look out, First Amendment. Thursday, Julian Assange’s charges were escalated to include being charged under the Espionage Act. This is a crucial change, because previously Assange was being charged under the Computer Fraud and Abuse Act. Being charged under the Espionage Act means that the publisher of leaked secrets, not just the leaker herself, can be held liable. This would put every publisher of leaked material, no matter how well vetted internally, and every media outlet in the world at risk for prosecution. Now, it can certainly be argued that Assange is no journalist, nor a publisher, as those terms are commonly understood. But, hypothetically, if a court would decide that he was, then that would not bode well for journalists and publishers in our democracy, and it would be the end of national security journalism and a blow to First Amendment Rights.
And this happened, not only on Trump’s watch, he who hates “the enemy of the people” but also on the watch of his attack dog, William Barr, who heads up the Department of Justice, the governmental entity that made the decision to charge Assange under the Espionage Act. Simply, if Assange goes down in flames under the Espionage Act, all other media outlets are at risk for exactly the same thing. Daily Beast Insider:
The current set of factual allegations underlying the Espionage Act charges essentially state that Assange communicated with [Chealsea] Manning about securing classified documents, encouraged Manning to leak documents to WikiLeaks, published the documents (sometimes without sufficient redactions to avoid harm to third parties), and then continued to encourage Manning to leak more documents for publication.
Here is the problem, though: That is similar to what just about every national security reporter and investigative journalist does on a regular basis. They all from time to time have to communicate with their sources about leaking classified information and materials, and do what they can to encourage their sources to keep leaking to them despite knowing that the source is breaking the law. You see the work product of those classified leaks on a regular basis in media reports.
Do those actions technically meet the legal requirements for charges under the Espionage Act? Yes. However, with the exception of one instance in the midst of World War II when prosecution of a newspaper was briefly considered, the government has always declined to seek criminal charges against media outlets because of an institutional understanding that it was inconsistent with First Amendment protections for the press. Even under Richard Nixon, no friend of the press, the Justice Department did not seek to prosecute The New York Times or The Washington Post for their publication of the Pentagon Papers. Instead, they limited their actions to civil litigation to stop the publication of the leaked materials, and ultimately lost that argument at the U.S. Supreme Court.
Having a governmental department decide that somebody has violated the espionage act by leaking “state secrets” — and that’s a call which is subjective, and open to interpretation — opens up the door for all sorts of totalitarian abuse. What it means, simply, is that criminal liability would be decided at the discretion of the Justice Department and the White House. And with this cabal of thieves in office presently, you can see why journalists everywhere are shuddering and grinding Valium into their coffee, in anticipation of how this case might be decided.
Julian Assange is a scumbag, no question about that, but his criminal prosecution under the Espionage Act has just opened up Pandora’s box and we need to keep a close eye on this. There is a lot more at stake than whatever happens to an eccentric proselytizer of conspiracy theory.