The bipolar, bipartisan love/hate for the Wikileaks founder threatens the First Amendment and has clouded the true nature of the fundamental rights at stake.
BY DAVID SNYDER—It’s not hard to find people in Washington with strong opinions about Wikileaks and its founder, Julian Assange. But good luck finding someone with an opinion about Assange that hasn’t flipped 180 degrees (and maybe back again) over the past ten years.
Assange has managed the rare feat of becoming a pariah to both the left and the right, politicians and the press, “the masses” and their elected leaders. Foreign and domestic, coastal and “flyover,” red and blue—everyone seems to hate Assange (except for that time when they used to love him).
As a result, Assange has become a poster boy for the importance of First Amendment protections. At its core, the First Amendment is an expression of “anti-majoritarian” rights—it is meant to protect social pariahs from persecution by political majorities. Popular people and popular ideas generally don’t need constitutional protection. Haters and lunatics and radicals? Their speech needs protection for the very reason that strong majorities reject it—it is so far outside the norm that ordinary politics will almost certainly persecute it.
Assange’s massive, wholesale leaks have by and large been eminently newsworthy and revelatory—and, it must be said, irresponsible in scope and content. Wikileaks has been criticized for failing to exercise editorial judgment, needlessly exposing innocent victims like sick children, rape victims and the mentally ill public exposure and, potentially, real danger. (Wikileaks denies this charge, and Assange says it has a harm-minimization policy.) The outlet’s decade-plus of disclosures will put First Amendment protections to a real test. And, given the bipartisan rage focused on Assange, it’s entirely possible that the judicial system will fail that test. If it does, we will all suffer.
Lawyers like to say that “bad facts make bad law.” Two recent legal cases involving Wikileaks could prove this maxim: the potential prosecution of Assange under the Espionage Act and the Democratic National Committee’s lawsuit against Wikileaks and Assange. Both could threaten the foundations of First Amendment protections—especially if the bipartisan Assange-hatred overcomes the blind administration of justice.
The World’s Love/Hate Relationship with Assange
Once a darling of the liberal left for exposing uncomfortable facts about United States military engagements, Assange’s Wikileaks became the scourge of many Democrats for its role in facilitating the release of emails hacked from Democratic National Committee email servers. And while Donald Trump and other Republicans “LOVED” Wikileaks (as Trump put it on Twitter) in the fall of 2016 for those very same leaks, many on the right are calling for Assange’s head, now that he appears to be the focus of potential criminal prosecution for serial releases of highly sensitive classified documents mostly related to military and intelligence matters.
After the so-called “Vault 7 Leaks” of March 2017, Trump’s then-CIA director Mike Pompeo blasted Wikileaks as a “non-state hostile intelligence service,” adding that “we can no longer allow Assange and his colleagues the latitude to use free speech values against us.”
“Use free speech values against us.” This is classic majoritarian / despotic rhetoric, asserting that the nation’s core freedoms are a vulnerability—but only if someone really, really bad wants to assert them.
The Trump administration’s 180-degree turn on Assange is not unusual, and not surprising. When Assange’s leaks helped Trump politically, he was a hero to Trump. When the leaks threatened President Trump, he becomes “an enemy of the American people,” as Republican Sen. Ben Sasse put it, adding that Assange “deserves to spend the rest of his life in an American prison.”
The left has engaged in similar flipfloppery, blasting Assange for the DNC leaks, which somehow crossed a line that (they seem sure) was not crossed earlier.
Indeed, Assange is a sort of litmus test for one’s true views on transparency, free speech and a free press. Do you claim to support a free press? Assange has a document release that will test that belief. Do you believe in government transparency? Wikileaks has very likely caused you to impose some limits on that belief—limits that may well be tied to your partisan orientation.
Espionage Act Prosecution
As unintentionally revealed by federal prosecutors last month, the government has apparently filed a sealed criminal indictment against Assange. It is unclear what he’s been charged with or if he can ever actually be extradited to the U.S. for prosecution. But one real possibility is that the government will charge Assange with violating the Espionage Act, a World War I-era statute that has been used periodically over the past 100 years to prosecute leakers of classified information.
To date, the Espionage Act’s targets have all been leakers in the first instance—people who took classified information and put it outside government control. Wikileaks is different, though: it’s a distributor of information originally leaked by somebody else. In other words, Wikileaks is a “publisher” in that term’s broadest sense.
As media advocates (including myself) have said again and again, an Espionage Act prosecution of a publisher or an individual journalist would cross a bright red line, bringing the very act of publishing within the scope of a harsh criminal statute in a way—we hope—the First Amendment does not permit.
And yet recently, media outlets generally have been slow to offer support for Wikileaks. This reluctance is rooted in a false dichotomy between Wikileaks and “real journalism” or “real publishing.” This is a dangerous distinction. If only “real journalism” or “real publishing” are protected by the First Amendment, someone has to decide what constitutes “real” journalism or publishing—a decision that, if left in government hands, is almost certain to result in overzealous regulation of expressive activity.
What would the New York Times have to worry about if the government successfully prosecuted Assange under the Espionage Act? Quite a lot, actually. If a publisher like Wikileaks falls under the Espionage Act, what would stop the government from prosecuting a more conventional publisher—or, for that matter, an individual journalist? There are plenty of ways to distinguish the Wikileaks from the Times and Assange from a working journalist, but not in ways that would give the Times much comfort should the government ever bring Espionage Act charges against it.
Now, under current First Amendment law, a successful prosecution of a journalist or publisher under the Espionage Act seems unlikely. There is a long line of Supreme Court authority supporting the notion that journalists (and others) are immune from civil or criminal liability for publishing information of public interest that was unlawfully obtained by someone other than the journalist.
As the Supreme Court put it in their 2001 decision Bartnicki v. Vopper, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern.” However, whether this law would protect a journalist or a publisher in the event of an Espionage Act prosecution—while very likely—remains to be seen.
If that publisher were the Washington Post, there would be a widespread public outcry. Media and free speech advocates would rush to the Post’s defense, as would some politicians and others. As a pariah in many if not most of the halls of power and influence in Washington, Wikileaks likely would not be afforded such support.
While one would hope that judges and juries apply the law fairly and evenly irrespective of public sentiment, judges and juries are, after all, just people—ultimately subject to the same winds of public sentiment as anyone else. The “bad facts” of Wikileaks’ disclosures — their indiscriminate nature, their irresponsible scope, the possibility that Assange did something more than passively receive information — could, combined with the widespread animus to Assange, lead to a decision that would open the door to dangerous prosecutions against “real” publishers or “real” journalists.
The DNC Lawsuit
Similar principles and pitfalls attend a lawsuit filed in April against Assange and Wikileaks by the Democratic National Committee. The DNC complaint accuses Assange and Wikileaks of various crimes related to the publication of stolen emails. Would the First Amendment protect that publication? Well, it depends.
As I mentioned earlier, there is a fairly robust body of case law holding the First Amendment protects the publication of truthful information about a matter of public concern. That is true even if the person who provided the information to the publisher clearly broke the law in obtaining that information.
But was Wikileaks merely a passive recipient of unlawfully obtained information? The DNC complaint suggests that Wikileaks was more deeply involved than that. If so, it’s possible the First Amendment would not protect Wikileaks in the DNC case. The DNC would have to prove with admissible evidence that Wikileaks itself engaged in criminal activity, but it might be much easier to prove that to a judge or jury who view Assange and Wikileaks skeptically to begin with.
Modern First Amendment jurisprudence was forged in the tumultuous years following World War I, when those branded “enemies of the people”—communists, anarchists, draft dodgers and others—were held to have rights under our constitution that overcame near-universal sentiment against them.
We have entered another era of intense fear, loathing and mistrust. It is easy for those base emotions to carry the day—and they do so on Twitter every single day. Let us hope that when it comes to Assange—if it ever comes to this—cooler heads prevail.
David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.