The Julian Assange Indictment and the First Amendment

April 18, 2019


The indictment of WikiLeaks founder Julian Assange for conspiracy to hack into a classified government computer has reignited the debate over the question: what is the line between First Amendment-protected journalism and cyber-crime? On this episode, two leading experts on the intersection of the First Amendment and national security–Josh Geltzer of Georgetown University Law Center and Ben Wizner of the American Civil Liberties Union’s Speech, Privacy, and Technology Project—join host Jeffrey Rosen to consider whether Assange’s indictment poses a threat to press freedom.



Josh Geltzer is the founding Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor of Law at Georgetown University Law Center. He is also an ASU Future of War Fellow at New America. He previously served as Senior Director for Counterterrorism at the National Security Council, and Counsel to the Assistant Attorney General for National Security at the U.S. Department of Justice.

Ben Wizner is the director of the ACLU’s Speech, Privacy, and Technology Project. His work focuses on the intersection of civil liberties and national security, and he has litigated cases involving airport security policies, government watch lists, surveillance practices, and torture. He is an adjunct professor at New York University School of Law, and since July of 2013, he has been the principal legal advisor to NSA Edward Snowden.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document. 

Freedom of Speech and the Press by Geoffrey R. Stone and Eugene Volokh

This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People, a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today we discusse the indictment of Julian Assange, the founder of WikiLeaks, and whether or not it is consistent with the First Amendment. His indictment has reignited the debate over the question about the line between First Amendment protected journalism and cyber crimes, and joining us to discuss this fascinating and important question about whether the indictment of Assange poses a threat to press freedoms are two of America's leading experts on the intersection between National Security Law and the First Amendment, two great friends of the We the People podcast. Josh Geltzer is founding executive director of The Institute for Constitutional Advocacy and Protection and a visiting professor of law at Georgetown University Law Center. He is also an ASU future of War fellow at the New America Foundation. He previously served as senior director for counterterrorism at the National Security Council and counsel to the Assistant Attorney General for National Security at the US Department of Justice. Josh it's great to have you back on the show.

Josh Geltzer: [00:01:19] Thanks so much for the invitation.

Rosen: [00:01:20] And Ben Wizner is Director of the ACLU speech privacy and Technology project. His work focuses on the intersection of civil liberties and National Security. He has litigated cases involving airport security, government watchlists, surveillance practices, and torture. He is an Adjunct professor at New York University law school and since July of 2013 he has been the Principal legal advisor to Edward Snowden. Ben, thank you so much for joining.

Ben Wizner: [00:01:46] My pleasure Jeffrey.

Rosen: [00:01:47] Ben let us begin with you. You have written that: the justice department hasn't crossed the line that many feared it would. It hasn't charged Julian Assange for publishing truthful information about matters of public concern. That prosecution would have been unprecedented in the nation's history. But the indictment is troubling nevertheless. It characterizes as part of a criminal conspiracy journalistic activities that are not just lawful but essential to press freedom. Tell us precisely what Julian Assange has been charged with and why you think that his activities are not just lawful but essential to press Freedom.

Wizner: [00:02:26] So let me start with the good news from a civil liberties perspective. The indictment that many of us were so concerned about in the civil liberties community did not arrive. We have not yet seen the government charge a publisher for the publication of truthful information on a matter of public concern. And that is the one that would have been for many of us a constitutional redline and would have put lots of investigative journalism right in the crosshairs. It would be difficult to distinguish this publication from any other journalistic publication. Assange was charged with participating in a conspiracy under a hacking. That makes it a crime to obtain unauthorized access to a computer. In this case it was Chelsea Manning the Army private who had leaked hundreds of thousands of documents to WikiLeaks and the government contends that Assange essentially had a conversation with her in which they discussed his providing her with assistance to crack a password that would have allowed her to get access to parts of the government system without revealing her identity. It's not at all clear that that conspiracy ever succeeded. The indictment in fact says that Chelsea Manning had already turned over the documents at the time they had this conversation. And it looks like what the government was trying to do is come up with a very narrow grounds that would distinguish what Assange did from what ordinary investigative journalists do. Most journalists don't help their sources crack government passwords for any reason. What worries many of us though is that the elements of the criminal conspiracy that the government lists in this indictment are in fact many of the ordinary activities of investigative journalists: trying to coax additional information out of a source, trying to help a source conceal her identity so that she isn't caught, creating some kind of secure means of communication. These are things that investigative journalists do all the time. One other ground for concern here is that if you read the government's indictment and the accompanying FBI affidavit that was unsealed this week, you see that the conspiracy that the government is talking about is not just the conspiracy to get past the government. It's a conspiracy to violate the Espionage Act, the 1917 World War I era law that makes it a crime to provide National Defense information basically to anyone who is not authorized to receive it. Assange isn't charged under the Espionage Act, but these documents mention it all over the place and it makes me wonder whether this is the complete case that the government is going to bring.

Rosen: [00:04:51] Josh it sounds like much of the debate is whether or not Assange's communications with Chelsea Manning added up to cyber hacking. Tell us more about the facts of what he is charged with. There's one text exchange cited in the indictment in which Manning told Assange: after this upload that's all I really have got left and Assange replied: curious eyes never run dry in my experience. And that's being cited as a violation of the cyber crime statute. Tell us about the facts and whether you think that they do indeed violate that hacking statute.

Geltzer: [00:05:26] Thanks, Jeff. And I largely agree with Ben in characterizing what the government has laid out here as narrow and that's really narrow in a couple of respects. It's narrow first of all in that it's a conspiracy that's alleged to have lasted eight days. We're talking about eight days of activity really exchanges of messages. It's narrowing that it's alleged at this point to be a conspiracy of two: Manning as well as Assange, and it's narrow in that it really tries to avoid the things that have been the subject of fascinating and lively debate as to whether Assange and Wikileaks more broadly are engaged in journalistic publication type of activities. Instead the charges here really are focused on what seems like a request from Manning for assistance in hacking, in breaking in to the SIPR Network, which was a network that the defense department runs up to the secret meaning classified up to Secret. It's actually a network to which Manning had access but just as has been rightly  described, it seems that Manning wanted to be able to login under somebody else's ID and password presumably to cover the fact that once logged in Manning was going to continue to take out documents and then share them, classified documents. And the request was for help with getting in or hacking and it seems that Assange, based on the admittedly sparse messages back and forth, thought that an expert on his team meaning Assange's team could help with that, offered to help with that and then at least it appears that in fact Assange and his expert were not able to help although that's- it's not totally clear in the messages that we have, included in the affidavit in support of a criminal complaint that was released just a few days ago, but actually had been filed in December 2017 in the eastern district of Virginia. So this is narrow and time. It's narrow in number of people involved. It's narrow in scope. It's also in a sense narrow in theory because in Manning's own criminal proceedings in the system run by the military justice system, which ultimately convicted Manning of a number on a number of counts this theory that this was the sort of hacking that violates the law was validated by the judges there. Now that's not binding necessarily on the district judge in Virginia who would face this issue assuming Assange eventually sees the inside of us courtroom. But again, there's a narrowness. But let me offer all of this with a caveat which is just as Ben said, this is what we have in front of us now. This is the single count, the single charge is being brought but it is at least conceivable that that could change. It could change at this stage in particular where the u.s. is seeking extradition and with some limitations it's possible that the United States might try to expand it even in the future, though the terms of our extradition treaty with the Brits would narrow that but perhaps we can get into all of that a bit further later on.

Rosen: [00:00:54] We will indeed. So Ben let us delve into the charges themselves. You write that the indictment characterizes everyday journalistic practices as part of a criminal conspiracy: cultivating a source, protecting a source's identity, communicating with a source securely. The indictment describes all of these as the manner and means of the conspiracy. But you say that this is what major news organizations do all the time. Tell us more about the facts and why you think that criminalizing them would endanger newsgathering by major news organizations.

Wizner: [00:01:26] Well, you know, there's a way in which if you look at what investigative journalists in the National Security space do it looks a lot like a criminal conspiracy. Remember the laws barring government officials with security clearances from sharing information with the press and the public are incredibly broad. Essentially what it means is that when you are reading in the newspaper on an almost daily basis classified information that's been shared by a government official, a felony has been committed, at least on the books. And so when a Pulitzer prize-winning journalist like Barton Gellman calls up his sources at the Department of Defense or in the intelligence community and says, what more can you tell me about this? The answer to that question is a felony, and the question itself was soliciting that felony, and so what I think has made a lot of people nervous, made the Obama Administration nervous, is we think Julian Assange looks very different than the New York Times, but the cases that we bring set precedents and how do we Define something narrow enough that distinguishes who he is and what he does from what Barton Gellman or Scott Shane at the New York Times might do, so that we don't in fact chill legitimate journalism that is protected by the First Amendment. The Obama Administration decided that that needle was a little bit too narrow to thread. What we have here is a conspiracy charge where the main element of it is something` that journalists don't do. As I said, they don't help sources crack passwords, but all of the acts in furtherance, all of the other conduct that's described does look a lot like journalists and the journalists who I've spoken to in the last week are at least uneasy about that. It makes them think that the way the government is writing about what Assange did here really does except in that one detail sound a lot like what they do and that's why I say that this is a bit of a confusing document. Also as I said before because the document makes repeated reference to the Espionage Act, which Chelsea Manning was charged for, Assange is not being charged for, there would be serious questions raised that we can get into if Assange actually face charges under the Espionage Act. So I think the document looks to me to be the product of some kind of push and pull and maybe even a compromise where you know what the government really thinks - remember this is someone who the government has for almost a decade been calling the head of a hostile intelligence agency, but the criminal charge is you unsuccessfully tried to help somebody crack a password - there's such a mismatch there that it's hard to believe that this is the whole story.

Rosen: [00:04:03] Josh, both the New York Times and The Washington Post have supported the indictment of Julian Assange. The Times wrote: the Administration has begun well by charging Mr. Assange with an indisputable crime and the post said, Mr. Assange's case could conclude as a victory for the rule of law, not the defeat for civil liberties of which his defenders mistakenly warned. Both of them seem to be concluding that as Ben said journalists don't ordinarily ask sources to hack passwords and therefore it is not inconsistent with the First Amendment to prosecute Assange or other journalists for trying to persuade the source to hack a password. So on that score, on a technical question, do you agree or disagree?

Geltzer: [00:04:46] I'm inclined to agree with the take of those two papers and I think Jeff you've found your way to at least a little daylight here between Ben and me because the mere description in this indictment of activities that are themselves on their own lawful doesn't worry me as much as it worries him and let me begin by saying I understand that he's hearing from journalists in the field and I sympathize with him hearing from journalists in the field that they fear seeing things in a criminal indictment that resemble things they do each day. My response though, is that that happens in a speaking indictment. Imagine a conspiracy to rob a bank or to blow up a federal building? You might well talk about the conspiracy having a number of steps and one of those might be getting together to rent a car or buy the materials or ingredients that could be made into explosives. Those are themselves lawful activities except for their connection to the ultimate aim - a crime. Renting a car should not be chilled, buying ingredients that can have peaceful purposes should not be chilled merely by their appearance in the context of an indictment that has them adding up to leading to the fulfillment of a conspiracy with a criminal aim - in those cases the robbery itself or the bombing itself. And in this case, in the case of Assange's indictment, the hack, I actually think it's somewhat to the Justice Department's credit that they didn't try to do more than the bare minimum which of course they would be within their rights to do in an indictment, and tell at least a bit of a story. It's only six or seven pages although the affidavit that's been now released adds more texture to it. But this is a hot-button issue. It's one robustly debated and I think rightly so and so I think the justice department wanted to try to tell at least a bit of a story of how It's thinking about it, how it's approaching it, and make it what we call a speaking indictment and in doing so it told a story and that story does have parts that on their own would not be criminal but that to me happens when you lay out the steps that a conspiracy can involve, ultimately with something as its objective that is Criminal and here that that piece was the hack. It was not the publication. It was not the Outreach to a source. It was the offering of help, ultimately unsuccessful, with the offering of help to break into a classified government computer system. That leaves me about where The Post and The Times seemed to come out which is that this is 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 raised.

Rosen: [00:07:29] So Ben, you yourself just said in the previous round journalists don't ordinarily help sources hack passwords. So why don't you agree with The Times, the Post, and Josh?

Wizner: [00:07:41] Because no one actually thinks that the ultimate aim of the conspiracy that the government is worried about was to crack a password after Chelsea Manning had already turned over hundreds of thousands of documents to WikiLeaks. Everyone knows that the ultimate aim of the conspiracy that the government is really worried about and really thinking about was actually to produce those documents for Wikileaks to publish, and that's why if you read the FBI's affidavit in this, it's very much about the publication and not just about the narrow hacking part. And so it almost seems like they worked backwards from what they think the real conspiracy was to the one that they thought was narrow enough to charge and maybe facilitate extradition in this case. But again, I just think that there's such a remarkable disjunction between the way that the government has described Assange over the years and how narrow this crime is. I mean the government went out of its way in its press release to say that the maximum penalty under this indictment would be five years, but that defendants typically serve much less. And in fact, if we try to look at sentences for people who were charged even if they are charged, if they're charged at all, for attempting unsuccessfully to hack a password in these kinds of circumstances, I doubt people do prison time at all. And that's why I think that I'm not- you know, as I said from the beginning, there is good news in this indictment if this is the end of the story. There is all of this evidence scattered around it that this isn't the end of the story. Let me just interject one other point here. The FBI's affidavit supporting this indictment is from 2017. The indictment itself is dated March of 2018. In 2019 the government called Chelsea Manning before a criminal grand jury, and when she refused to testify put her in jail where she's now been for several weeks. Why does the government think it's so important to get her testimony that it's willing to imprison her right now if they have all the evidence that they need in this affidavit and this indictment to prosecute Julian Assange? And that's what I think persuades me that this is not the whole story.

Rosen: [00:09:47] So Josh you were working for the Obama Administration, which decided not to prosecute Julian Assange under similar facts. What is your response to Ben's claim that the illicit motive of the indictment - which might claim to focus on narrow cyber hacking but is in fact intended to punish Assange for the publication of truthful information - might taint the indictment, and does the First Amendment take account of motive?

Geltzer: [00:10:13] My colloquial answer might be that sometimes you get Al Capone for tax evasion. It's true that people in government had a real concern about what information was being revealed, was flowing out through Wikileaks and I say that as somebody who dealt with the military and with our intelligence community and with our diplomats, all of whom really did have to grapple with what I think were very real dangers, very real threats that flowed from the release of information. But believing that the government was concerned about that, which is indisputable, one can't argue with that as a fact in the world, is different from suggesting that this narrow charge is somehow improper. There may be things as in the Al Capone case that one worries most about as a practical matter in the world. But if that person breaks other laws, that doesn't inoculate them from being charged and ultimately prosecuted for those other laws. Now here, it's true that the story that gets told in the FBI affidavit is one that incorporates the harms I was referring to earlier that  diplomats had to grapple with - the release of diplomatic cables, and the military had to grapple with - the release of the names of local partners. That's all true, but it doesn't change that the charge here is about something really different from that. It's about a hacking charge, not whatever one might characterize that as, publication or journalism or something else, and b. that if in fact the facts alleged in this charge can be sustained, that's criminal activity.

Rosen: [00:11:54] Ben any final thoughts on the hacking indictment if you like, but I'm also going to pick up on the suggestion that you have made that this may be just an opening salvo. You've written: the indictment states the purpose of the conspiracy for which he was charged was to violate the Espionage Act. This raises the question whether the indictment is just an opening salvo aimed at easing the path for expedition with more substantial charges to be added later on. What might those charges be? Might they include a violation of the Espionage Act itself? And why would that be troubling from a First Amendment perspective?

Wizner: [00:12:30] So just to wrap up on the attempted hacking charge. I think we have some common ground here. The indictment doesn't charge Assange for publishing but the government clearly charged Assange because of publishing and I don't think either one of us would disagree with that statement. You know I said there's a number of reasons why I think that additional charges here would not be surprising. The first I alluded to before, you know, the government is obviously still trying to build evidence here and they care enough about building that case that they're willing to return Chelsea Manning to jail after she served 7 years because they consider her testimony so important for some reason in some case against him, in some case against Assange. Now, whether it's this one or another one, we don't know. The repeated references to the Espionage Act throughout these documents give me some reason for concern. Now, there are some interesting questions that arise about you know, how the government would have to bring those additional charges. Josh alluded to those earlier. There's something in international law called the doctrine of specialty and what it basically says, and this is protected by treaties, is that country A can't ask country B to extradite someone for a particular charge and then turn around post-extradition and then charge someone with something else. The question is, is that right one that belongs to the state or one that belongs to the defendant? Is it about protecting the state B sovereign rights - in this case the UK rights - to decide whether it wants to turn someone over based on the nature of the charge? And so in Europe, for example, there's great reluctance to extradite people if they might face capital punishment somewhere else. That's not at issue here. But that explains why this Doctrine might protect the state, or does it protect the individual, so that when he arrives in country A and new charges are brought, is he able to say I never had a chance to fight extradition on that ground because the charge came later? I actually don't know the answer to that question and I don't know whether if the US wants to bring more charges it needs to do so in the next couple of months so that it can be litigated in a British court or whether the United Kingdom can actually waive its rights under the treaty even post extradition. Maybe Josh knows the answer.

Rosen: [00:14:52] Great. Well, we're going to ask Josh the answer. Tell us what future charges the government might bring against Assange? Describe charges that could fall short of a violation of the Espionage Act and then we can work our way up to a discussion of what a charge to Assange for violating the Espionage Act would entail?

Geltzer: [00:15:12] The answer is delightfully uncertain which gives us even more to talk about. So as it stands and as Ben absolutely rightly recapped, the current extradition treaty in place between the u.s. and the UK, which was signed in 2003 I believe, reflects a general international law Principle as he indicated, the doctrine of specialty, which indicates that at least for charges for activity pre extradition, those charges should be limited to the ones for which extradition specifically has been sought. A couple of complicating factors, which of course lawyers love complicating factors; one is that I believe that can be waived by, in this case, the Brits so that they could at the request of the United States not have that Doctrine apply here. Another complicating factor is that nothing is as open and shut as we try to make it sound when we recap something like a treaty and in fact what it says in the treaty is that there won't be charges brought but there's an exception for charges that are essentially the same but under a different name arising from the same set of facts and I'm not sure I know either from a reading of the text or from any case law around it exactly the limitations of that, what it would mean if the Brits did not waive the applicability of the provision of the treaty for the United States to tack on charges that might fall within its scope. I genuinely don't know. There's even more I don't know because it's uncertain. There is a split among the circuit courts of appeal here in the United States on exactly the issue that been raised as to whether an individual defendant in a US court having been extradited here can say this new charge that's been brought against me violates specialty , shouldn't be added and therefore should be thrown out, or whether that was something the two countries need to work out. That's a circuit split and one circuit that has not weighed in on it just so happens to be the fourth Circuit Court of Appeals which includes the eastern district of Virginia where Assange has now been charged. So you'd have a district judge and ultimately court of appeals for which this is an open question on which they would have differing views from differing sister circuits. And where they would have to Grapple what with what they think is the best result. So if for example charges involving the publication of classified material, which I think is what's been regarded as the real third rail here, the thing that would raise real First Amendment complications to be sure if those were added on and if those were to be challenged by Assange as violating the treaty, and its provision incorporating the doctrine of specialty, it would be left to the the judge and the court of appeals to determine whether Assange can even raise that as a defense.

Rosen: [00:01:00] Fascinating. So Ben we've learned that adding new charges might be difficult. The circuits are split on it. But Josh just referred to a charge against Assange for publishing truthful information as a third rail. You've called it memorably Crossing the Rubicon. Why would it be a form of Crossing the Rubicon or hitting the  third rail for the government to charge Assange with violating the Espionage Act and what First Amendment questions would that raise?

Wizner: [00:01:29] Well remember that what the government is upset about here, the documents that Assange published, were also for the most part published by the New York Times, the guardian, Der Spiegel and others. These particular documents from Chelsea Manning from 2009, 2010 were actually published by Wikileaks in partnership with those three prominent Global Publications, and the question would be if someone like Assange or if anyone associated with WikiLeaks could be held to have committed a crime for publishing those documents, by what legal principle has the New York Times not also committed that same crime? And you know, what especially worries us is that it's usually cases like this one and no one's really going to champion Julian Assange the person; I've said before no one would choose him as the poster child for any of these kinds of principles. He's obviously not beloved on the right for his attacks on the US National Security State. He's certainly not beloved among Democrats who perceive him as having helped to elect Donald Trump. And so there might not be this big groundswell of support, even media solidarity, if such a prosecution were to take place, but the precedent that would be set could then be used against other publications. And we know that this particular president and the Attorneys General who have served under him have said very clearly that they don't think there's any prohibition on charging reporters and you know, we'll get further into this, but there's nothing in the text of the Espionage Act itself that would exempt the press from prosecution. It has been our constitutional tradition not to do that. And so the real concern, what I've called a Rubicon, is you cross this to go after someone deeply unpopular like Assange, but then you create a precedent that can and will be used against other important investigative journalism.

Rosen: [00:03:37] Josh if the administration were to charge Julian Assange for violating the Espionage Act, would that represent a third rail and would it violate the First Amendment and why?

Geltzer: [00:03:51] It would certainly be a dramatic step and I think it would force courts and all of us to grapple with questions of the type Ben's raising that we have not confronted head-on and perhaps more importantly that we don't have clear guidance on from the US Supreme Court. There are journalists, and I respect their trying to articulate this, that see what Assange and Wikileaks have done as quite different from what they do, that there's not the same putting things in context, writing up of material, analytic overlay that many journalists, perhaps all of whom some folks consider journalists, engage in. At the same time, Ben is right. The media publications that I think all of us would accept to be journalistic organizations have done the larger data dumps, perhaps not any as large as Wikileaks but ones at least similar it seems to some degree with the approach Wikileaks takes, which is not the commentary or the analytics but the here it is, the provision of the materials and so figuring out what that line is and more broadly figuring out what separates the press from the rest of us in this digital age where all of us or at least many of us write something in some context in some format somewhere online in the hope that at least one person will read it, it's very hard. The reason I say, I think this is open as a matter of Supreme Court Doctrine and maybe we'll get into this some more is that I don't think the Supreme Court has clarified at least in this context where the line is between the criminal law that no one including those who may or may not be press can violate and where the First Amendment or other factors push in favor of press freedom or maybe it's just general freedom of speech regardless of the press. We of course have the Pentagon papers case, which I suspect will come to which to my mind. Although I'll be interested for Ben's reading, it's really a case about prior restraint, not about whether one way or the other the Supreme Court having spoken to the issue of after-the-fact criminally pursuing those who share classified information. We have some cases including one involving a campus newspaper in California in which there seems to be no generalized exemption from criminal law process. That's Zurcher v. Stanford Daily. But I don't think we have a spot on answer drawing that line between where First Amendment protections and the general reach of the criminal law begins.

Rosen: [00:01:20] So Ben let us talk about the cases that Josh just mentioned. There's the Zurcher case. Dear We the People listeners when I teach criminal procedure, it's a great case to remind you that there's very little restraint on government subpoenas even for news organizations. And the government in that case was allowed to search All Through the student newspaper in an effort to find a photograph of a protester and it's a dramatic case, and then there's the Pentagon papers case which as Josh said was a splintered opinion that seemed to reject the idea of prior restraints against the government, as people will know from the recent movie about the Pentagon papers case which is great, and it's a splintered opinion. I can summarize the different positions, but I think I'll let Ben do that. And then what does the Pentagon papers and the Zurcher case say about whether an indictment of Julian Assange for publishing truthful information would or wouldn't violate the First Amendment?

Wizner: [00:02:21] Well, I agree with everything that Josh said about this and that's what makes me so nervous from the standpoint of how the Supreme Court would resolve this. The answer is we don't know. In fact the two of you know, the current Justices a lot better than I do. You know the Pentagon papers which you know famously was an attempt by the Nixon Administration to block the New York Times from publishing a classified secret history of Vietnam that Daniel Ellsberg had provided to a Times Reporter, Neil Sheehan. The court said we won't allow the prior restraint here, that your speculative claims of harm about National Security are not enough to prevent a newspaper from publishing information that it determines to be in the public interest. But the court left the door open, I think, more than didn't answer the question, but really left the door open to criminal prosecution in some circumstances. That's why I said that the fact that there has been no prosecution for publishing truthful information in our nation's history is part of a constitutional tradition, not an ironclad rule of constitutional law, and I worry that in a case with a defendant like Julian Assange, we might get another kind of splintered ruling from the Supreme Court that would end up opening the door to more prosecutions. I do think though and I want to interject this here that specifically with Assange there's another thing we should be thinking about before we apply our secrecy laws like the Espionage Act to him. Assange is not an American citizen. He is an Australian Citizen and he was an overseas publisher. It would be a fairly extraordinary assertion of the reach of our law if we were to say that foreign publishers were bound by U.S. secrecy laws and it would set a very different kind of precedent. You know, the New York Times, The Washington Post they have bureaus in foreign countries. And one of the things that those reporters do is they try to pry out secrets that the Chinese might not want us to publish about their government. How would we react if China prosecuted the New York Times or one of its employees for violating Chinese secrecy laws? I think we would be apoplectic and we would say that law shouldn't apply to the New York Times and I don't think this issue has been discussed enough in the context of Assange. The hubris that it would entail for the United States to say that someone like Assange is bound by American secrecy laws.

Rosen: [00:04:55] Thanks so much for that. So Josh lots to discuss but let me ask you whether you believe that the current Supreme Court, the Roberts Court would allow the Espionage Act to be applied to a publisher for the disclosure of national security information? Just to review the text, the Espionage Act of 1917, the act that gave rise to the some of the greatest opinions of Holmes and Brandeis in dissent and concurrence, says that whoever for the purpose of obtaining information respecting the National Defense with intent or reason to believe the information to be obtained is to be used to the injury of the United States or to the advantage of any foreign Nation basically publishes it, is guilty of Espionage and in the Pentagon papers case several justices specifically said the Espionage Act of '17 did not support the government's case. That was justice Douglas's position and Justices Steward and Marshall agreed that in the absence of specific guidance by Congress, the court shouldn't grant the executive broad censorship power and there they thought the Espionage Act didn't apply. So do you think that if the government brought an indictment under the Espionage Act of Julian Assange, the Roberts Court would uphold it or not?

Geltzer: [00:06:12] Let me start with how I think that approach the question because the answer is a tough one to predict but I think they would start with some particular language from the the Zurcher verses Stanford daily case that that you summarized so well in which the majority, it was a 5-3 opinion, did acknowledge, pay homage to the First Amendment implications of allowing this warrant to be executed, and as I recall, the court said that where there is first amendment protection for such evidence in this case, as you say, it was photographs, warrant requirements should be assessed with scrupulous exactitude. Those are the kind of words that the Supreme Court gives us sometimes that in a sense reassure us that the justices are as fond of the First Amendment as the rest of us. They also are not words that we encounter in our daily lives and it makes it hard to predict what it means to apply them to any particular set of facts and the law that I think you'd find a very fact-bound inquiry in which the particular charges, how they're described, how this court thinks of Assange and Wikileaks and in particular the Assange and Wikileaks activities that might be subject to any Espionage Act charges, whether the Court thought this would be likely to chill journalists or other journalists depending on your view of that issue, publications or other publications, what they thought the repercussions might be. I think that would be the sort of scrupulous Exactitude they'd bring to the question. Ultimately, I think it would be a tough call. This court has been quite protective of the First Amendment in many contexts. It's really hard to say where they'd come down. I do think you'd have a justice department that from the beginning would be at least sensitive to the difficulties of trying to proceed with a prosecution where ultimately what's at stake is an actor or an entity doing things at least similar in certain key respects to what mainstream or other journalists or publications do, and trying to figure out how to hue as closely to the particularities of the case, of the charges, of the acts underlying those charges as possible.

Rosen: [00:08:36] Thanks for that. Ben if you were arguing this case before the Roberts Court, which in fact you might be, what would you argue to convince the justices that an indictment of Julian Assange for violating the Espionage Act violates the First Amendment?

Wizner: [00:08:51] Well, I should clarify that I never have represented Assange or Wikileaks and there's no indication that they would want me to represent them, particularly after some of my tepid defenses on this podcast. But look, you know, what I would say is that it has, by law and tradition, we have not criminalized the publication of truthful information, even if that information was obtained through the commission of a crime by someone else. That, as recently as the late 1970s, the General Counsel of the CIA expressed doubt in testimony before Congress about whether the Espionage Act could even be applied at all to leakers to the press. We're not even talking about the Press, but people who provide information to the Press. Remember the Espionage Act was passed in 1917, but it was not until the mid-1980s that anyone was ever convicted for sharing information with the Press rather than providing it to a foreign enemy. So this is very very new, the use of the Espionage [Act] at all in this context. We live in a society that is Awash in leaks. There are thousands of leaks of classified information each year. Surveys of government  officials in Senior positions show that you know more than half of them acknowledge that they have provided classified information to the press, and that among other concerns the court should have is given the huge breadth of the Espionage Act which makes it a crime to disseminate National Defense information to anyone not authorized to receive it. There are no affirmative defenses that might make the law more constitutional. The fact that the information released may have led to legal or policy reform, that the journalism that was based on it might have won awards, none of this would be relevant or even admissible in a trial under the Espionage Act. And so- even of the leaker himself. So again, I think what I would try to emphasize to the court, is that this would be an enormous enormous change that the framers of the Constitution put freedom of the press in the first- very first amendment because they realized that three branches of government might not be enough oversight, that we actually needed an outside check, that without unauthorized leaks to the press and their publication we would not have learned absolutely Vital Information about how our government functions, including that it tortured prisoners, including that it engaged in surveillance in violation of federal laws, that all of this information was classified at the highest levels and that the court should look beyond the general distaste for the particular defendant in this case at the much broader implications.

Rosen: [00:11:41] Thank you so much for that. Well, it is time for closing arguments in this extremely Illuminating and very well mooted discussion and let's just return to the question on the table, which is the one with which we began and Josh the first argument is to you. Do you believe that the indictment of Julian Assange for attempting to hack into a government computer to obtain classified documents violates the First Amendment and do you believe that it will succeed in court?

Geltzer: [00:12:15] I don't think the indictment as we currently see it violates the First Amendment and I think it will at least survive a First Amendment challenge in court which leaves aside questions of evidentiary proof and other complications for a prosecution but because of its narrowness in time, in the conspiracy and its participants charged, in the activity being limited to hacking, in the theory of hacking being one already validated by the military justice system in Chelsea Manning's own prosecution, all of that narrowness adds up to me to something that survives First Amendment challenges. Let me add just a couple of points to that, a couple of caveats that have come up in this discussion. One: this is not the end of the extradition story. Perhaps there will be challenges brought to extradition presumably by Assange and those challenges could evolve to the extent the United States tries to add at this point additional charges. Moreover it may not be the end of the story after that because as we've indicated if the UK were to waive the doctrine of specialty or if the US were to push its limits, there may be challenges that could be allowed to go forward by Assange in a U.S. Court to additional charges. Those could be challenges grounded in the treaty's terms. But as we've talked about those could well be challenges grounded in the First Amendment depending on what those additional charges are. Last point is that, and it's really where Ben ended his last answer as well. I am conscious that we are having this conversation in a week when Pulitzer prizes have been awarded and moreover in an era where press freedom is just so important and where I admire so much the work that's being done by a vibrant and active and robust press in the United States and frankly elsewhere even in the face of, here and abroad, real challenges to its work. And so it's with great admiration for the press and for the lawyers like Ben who defend the press that I realize we are having this conversation and that makes me all the more appreciative to get to be a part of it with you both.

Rosen: [00:14:20]Ben the last word is to you. Do you believe that the indictment of Julian Assange for attempting to hack into a government computer to obtain classified documents violates the First Amendment and do you believe it will succeed in court?

Wizner: [00:00:12] I think if the charges stop here and if we don't see anything else, it may be a difficult First Amendment challenge. I do think that there's considerable doubt about whether the activities that the government describes in this indictment - that is offering to help Chelsea Manning crack this particular password - violate the Computer Fraud and Abuse Act, which is the statute under which Chelsea Manning was charged. As Josh pointed out, the military court accepted that they do but a lot of scholars including former prosecutors say that they think that this is actually a pretty marginal case on the law and the facts and of course the scenario that I'm more worried about is that the government cherry picked this narrow charge for the purpose of extradition. Remember that it's very difficult to extradite people for crimes that are understood to be political offenses. I think a charge under the Espionage Act would very likely be deemed a political offense by the British Judiciary and it would make extradition more difficult but the nightmare scenario would be extradition proceeds under this attempted hacking charge and then once extradition has been effectuated, the government adds the charges that it really has wanted to bring all along which are those under the Espionage Act, and the British government waives treaty rights that would interfere with that. Now it would be a risky strategy for the government to do that because they would end up in years more of litigation in order to get what might be a six-month prison sentence, but nothing about this case has been predictable so far and it won't surprise me if there are twists that none of us thought of today.

Rosen: [00:01:14] Thank you so much Ben Wizner and Josh Geltzer for an uninhibited, robust, and wide open debate about crucially important First Amendment issues as well as highly technical, but also very important statutory issues. You have educated the We the People audience in the best tradition of the podcast, and I'm really grateful to both of you for joining. Ben, Josh, thank you so much for being with us.

Geltzer: [00:01:40] Thank you.

Wizner: [00:01:41] Thanks a lot.

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