The Assange Indictment and the First Amendment

WikiLeaks founder Julian Assange’s arrest for hacking conspiracy charges last Wednesday has sparked renewed debate over where courts should draw the line between journalism protected by the First Amendment and actions that are considered cybercrime under federal law.

Police arrested Assange in London on April 11, 2019, and that day the Justice Department unsealed his indictment for “conspiracy to commit computer intrusion.” Assange is accused of helping Chelsea Manning, a former U.S. Army intelligence analyst and convicted leaker, hack into a government computer to obtain classified documents in a manner that would conceal her identity. Assange will likely be extradited to face trial in the United States, and he would face a maximum sentence of five years in prison.

Assange’s arrest raised alarm bells among some First Amendment advocates, including Ben Wizner, Director of the ACLU’s Speech, Privacy, and Technology Project, and the primary legal adviser to Edward Snowden. Wizner joined Josh Geltzer, the Executive Director of Georgetown’s Institute for Constitutional Advocacy and Protection, to discuss the Assange indictment on this week’s episode of our We the People podcast.

Wizner expressed concern about the way that the indictment described Assange’s interactions with Manning. As Manning sent information and documents to Assange, Assange sought to maintain a secure means of communications with her and help her conceal her identity—actions that journalists often take when cultivating relationships with government sources.

“These are things that investigative journalists do all the time,” Wizner said. While making clear that journalists do not help sources hack into computers, he added that “all of the acts in furtherance, all of the other conduct that’s described [in the indictment], does look a lot like [journalism], and the journalists I’ve spoken to in the last week are at least uneasy about that.”

Geltzer, however, countered that the inclusion of such details related to the Assange-Manning interactions were simply part of the government’s effort to build a conspiracy charge. He characterized the indictment as narrow and as “an effort to vindicate the rule of law without getting into the admittedly very difficult, very tough, and very important implications for press freedom that a different set of charges might have.”

Integral to those press freedom implications is the question of whether Assange should be considered a journalist.

In the early days of WikiLeaks, according to The New Yorker, Assange espoused a social justice mission somewhat similar to that of investigative journalism: to expose illegal or immoral behavior committed by governments and corporations. Assange led WikiLeaks as it published thousands of classified U.S. government documents from the Iraq and Afghanistan wars as well as secret State Department communications. Many of those documents were subsequently used in articles by major news organizations like The New York Times, The Guardian, and The Washington Post.

However, WikiLeaks later allegedly began to obtain documents from hostile foreign governments. WikiLeaks published hacked emails from the Hillary Clinton campaign and the Democratic National Committee in 2016, which WikiLeaks is accused of receiving from Russian spies. Twelve Russian military intelligence officers were indicted by Special Counsel Robert Mueller in connection with that leak.

Citing that scandal as well as WikiLeaks’ tendency to dump documents without independently verifying them and without providing context with which to understand them, The Washington Post editorial board recently flatly declared, “Mr. Assange is not a free-press hero.” It added that Assange has engaged in some conduct that “real journalists” would never endorse.

It’s significant that Assange was not charged with espionage or for the actual publication of classified documents, as Geltzer and Wizner both pointed out. The government has never successfully prosecuted someone for the publication of truthful information on a matter of public concern.

“[T]hat would have been, for many of us, a constitutional redline, and would have put lots of investigative journalism right in the crosshairs,” Wizner said.

The Assange indictment may seem reminiscent of the Pentagon Papers case, New York Times Co v. United States (1971), in which the Supreme Court stopped the Nixon administration from blocking continued publication by The New York Times and The Washington Post of a classified report about the Vietnam War. The New York Times had already published the first installment of the so-called “Pentagon Papers” when its source, defense analyst Daniel Ellsberg, was charged with conspiracy, misappropriation of government property, violations of the Espionage Act, and other crimes. The charges against Ellsberg were eventually dropped because of government misconduct in the investigation, including illegal wiretaps—so his case does not provide much guidance on how Assange may fare.

“I don't think we have a spot-on answer drawing that line between where First Amendment protections end and the general reach of the criminal law begins,” Geltzer said.

Another legal question that could determine Assange’s fate involves an international law doctrine that is the source of a circuit court split here in the United States.

Assange had been living in London at Ecuador’s embassy since 2012, but, last week, Ecuador President Lenín Moreno revoked his asylum. That move enabled Assange’s arrest by British police, and, in turn, will allow for his extradition under the United Kingdom-United States extradition treaty.

But the terms of his extradition might limit the charges that can be brought against him. An international law doctrine called “The Doctrine of Specialty” prevents countries from extraditing someone for certain crimes and then turning around and tacking on additional or different charges post-extradition.

Both Geltzer and Wizner said they are uncertain as to whether the specialty doctrine attaches to a particular country like the U.K., which could try to prevent the United States from levying additional charges, or whether the doctrine is one that can be claimed by an individual defendant such as Assange to fight such charges himself. Some U.S. circuit courts of appeal are split on that question, and the Fourth Circuit, which includes the Eastern District of Virginia, where Assange would face trial, has not ruled on the question yet at all.

Clearly, as Wizner put it, “this isn’t the end of the story.” Assange may face additional charges as well as a legal fight that could help solidify the line between journalistic endeavors protected by the Constitution and illegal obtainment of classified government information.

Jackie McDermott is Constitutional Content Coordinator at the National Constitution Center.