Is the Assange indictment a threat to the First Amendment?

A British court on Wednesday sentenced Julian Assange to almost a year in prison for jumping bail.

That’s not the end of Assange’s legal problems: On May 2, Assange, the co-founder of WikiLeaks, will appear at a London court in relation to his requested extradition to the U.S.

The American government has many reasons to dislike Assange, who is responsible for the dissemination of huge troves of classified American documents. These include hundreds of thousands of classified military reports, hundreds of thousands of classified diplomatic cables, hundreds of classified reports from the military prison in Guantanamo Bay and thousands of secret CIA documents revealing the agency’s techniques for hacking and surveillance.

The publication of classified information violates a number of federal laws, including the Espionage Act. The act imposes up to 10 years of imprisonment for every violation of its various provisions.

But at least for now, the U.S. has not charged Assange with any such violations.

Instead, the United States indicted Assange for conspiring with Chelsea Manning, the former United States Army soldier convicted of leaking classified documents, to hack into a government computer and obtain classified information.

Why has Assange not been charged with the more serious crimes of publishing American secrets?

Constitutional protections for publication

One reason is the questionable constitutionality of such charges. They may violate the First Amendment to the U.S. Constitution, which prohibits the government from “abridging the freedom of speech, or of the press.”

Accordingly, the American government has traditionally abstained from charging publishers of classified information for the crime of publication. The one near-exception occurred in 1942, in the middle of World War II, after the Chicago Tribune published a front-page story titled “Navy Had Word of Jap Plan to Strike at Sea.” The story implied that the U.S. military had cracked Japan’s secret naval code – which in fact it had.

Chicago Tribune of June 7, 1942, featuring story, ‘Navy Had Word of Jap Plan to Strike at Sea.’ Screenshot, Chicago Tribune
An incensed President Franklin Roosevelt demanded that Espionage Act charges be brought against the reporter, the managing editor and the Tribune itself. But a grand jury refused to issue indictments.

The Pentagon Papers

In 1972 the U.S. government tried to stop The New York Times and The Washington Post from publishing the Pentagon Papers, a top-secret Department of Defense study on the Vietnam War.

In its well-known decision, the Supreme Court held that preventing the publication violated the First Amendment. Less known is the fact that a majority of the justices also thought that the newspapers could be prosecuted and possibly punished for the publication, even if stopping the publication was unconstitutional.

The Pentagon Papers decision was about the ability of government to stop the publication of information – in other words, its ability to impose a “prior restraint.” It left open the possibility of punishing publishers after the publication.

On the other hand, a number of later Supreme Court decisions did protect publishers who had published truthful information in violation of the law.

The court prohibited the punishment of a television station that broadcast the name of a rape victim in violation of state law, the punishment of a newspaper that published the content of confidential judicial proceedings, and the punishment of a radio station that broadcast an unlawfully recorded phone conversation.

These publications were all protected by the freedoms of speech and the press.

National security vs. free speech

However, none of these later cases dealt with publication of national security information, and the outcome may be different when it comes to such materials. That would depend on the specific dangers or harms posed by the publication: for example, on whether lives were endangered, or whether the government was simply trying to prevent embarrassment to itself.

Some judges, however, would likely simply defer to the government’s assessment of these dangers.

“In my judgment the judiciary may not … redetermine for itself the probable impact of disclosure on the national security,” wrote Justice John Marshall Harlan for himself and Justices Harry Blackmun and Warren Burger in the Pentagon Papers decision. Some of today’s Supreme Court justices – Justice Clarence Thomas, for example – are likely to agree with Harlan’s position.