Assange’s new indictment: Espionage and the First Amendment

Julian Assange, the co-founder of WikiLeaks, has been charged by the U.S. Department of Justice with a slew of Espionage Act violations that could keep him in prison for the rest of his life.

The new indictment expands an earlier one charging Assange with conspiring with Chelsea Manning, the former soldier convicted of leaking classified documents to Wikileaks, to hack into a government computer.

Assange is responsible for the dissemination of troves of classified American documents, including hundreds of thousands of military reports, hundreds of thousands of diplomatic cables, hundreds of reports from the military prison in Guantanamo Bay and thousands of secret CIA documents revealing the agency’s techniques for hacking and surveillance.

The Espionage Act, a sweeping federal statute enacted a century ago, imposes heavy criminal penalties for obtaining or disclosing classified information without proper authorization.

Beginning under President Barack Obama, recent years saw a dramatic increase in prosecutions under the Espionage Act. But these prosecutions were directed at leakers of classified information — all government employees and government contractors — not at journalists or publishers.

That makes Assange’s indictment a watershed.

The First Amendment is carved in granite at the U.S. Federal Courthouse in Boston. REUTERS/Brian Snyder

Scarcity of prosecutions

To be sure, threats of Espionage Act charges against journalists and newspapers were previously made, and in one case charges were even submitted to a grand jury.

In 1942, in the middle of World War II, 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 it had.

An incensed President Franklin Roosevelt demanded that Espionage Act charges be brought against the reporter, the managing editor and the Tribune itself. But unlike Assange’s grand jury, the Tribune’s grand jury refused to issue indictments.

In 1971 President Richard Nixon’s attorney general threatened the New York Times and the Washington Post with such prosecutions when the newspapers published the classified Pentagon Papers (https://www.nytimes.com/2016/06/30/insider/1971-supreme-court-allows-publication-of-pentagon-papers.html).

More recently, Alberto Gonzales, attorney general under President George W. Bush, suggested that the New York Times and the Washington Post violated the Espionage Act when disclosing the National Security Agency’s secret surveillance program and the CIA’s secret prisons – the so-called “black sites”.

But no prosecutions were brought in these matters.

One reason for the scarcity of such prosecutions is their questionable constitutionality. The language of the Espionage Act is so broad that, undoubtedly, some of its applications run afoul of the First Amendment to the U.S. Constitution.

Yet some Espionage Act charges against journalists and publishers are likely to pass constitutional muster.

Pentagon Papers to rape victims’ names

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. But a majority of the justices also thought that the newspapers could be 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 prosecuting the publishers after the publication.

A number of subsequent Supreme Court decisions did protect publishers who had published truthful information in violation of the law. For example, the court prohibited the punishment of a television station that broadcast the name of a rape victim in violation of a state law, prohibited the punishment of a newspaper that published the content of confidential judicial proceedings, and prohibited the punishment of a radio station that broke a federal statute by broadcasting an unlawfully recorded phone conversation.

But while these publications were all constitutionally protected by the freedoms of speech and the press, none of them involved national security information. The outcome may be very different when it comes to the disclosure of secret national security materials.

Chicago Tribune of June 7, 1942, featuring story, ‘Navy Had Word of Jap Plan to Strike at Sea.’ Screenshot, Chicago Tribune
The constitutionality of prosecutions for the unauthorized possession and publication of national security information is likely to depend on the specific dangers caused by the disclosure.