Julian Assange indictment endangers press freedom

The federal indictment of WikiLeaks founder Julian Assange this week for publishing stolen classified information raises serious First Amendment issues. Assange already has been indicted for improperly trying to obtain a password that would have accessed classified material. But the current indictment is different. This latest one is for the constitutionally protected act of publishing such classified material stolen by another individual.

The New York Times, the Washington Post, and other mainstream media outlets have published stolen classified information without having been indicted. Wikileaks is not mainstream, but the First Amendment draws no distinction between the nature of the medium for publishing. If Assange were to be successfully prosecuted and his conviction affirmed on appeal, that precedent would lie around like a loaded gun ready to be aimed at any newspaper or television station that published any stolen classified material. In an age when political leaders of both parties are weaponizing the criminal laws for their partisan advantage, this would be an especially dangerous precedent, allowing selective prosecution of media enemies.

All civil libertarians regardless of party should be concerned about the current indictment against Assange. I visited him in London several years ago and provided legal consultation when he was first arrested and when the Obama administration was considering indicting him. Indeed, we were concerned at the time that there might be a sealed federal indictment against him. The Obama administration apparently concluded in the end that the risks to freedom of the press were far too serious. The Trump administration apparently has reached a different conclusion on this.

I have since not been in touch with Assange after evidence emerged suggesting that he may have been part of an effort to damage the 2016 campaign of Democratic candidate Hillary Clinton by publishing some negative material he had allegedly received from Russia. I do not know whether these allegations are true but, if they are, they certainly affect his credibility as a neutral journalist. Of course, these days, how many media really pass the test of nonpartisan neutrality? In any event, Assange has not been indicted for any activities related to the 2016 campaign.

There is no guarantee that Assange will actually stand trial on this latest indictment, because Great Britain may refuse to extradite him for what it may consider to be a political crime. It is likely that he would have been extradited on the earlier password indictment because that one does not directly involve the act of publication. But this one does, and Great Britain enjoys a tradition of press freedom, though that is not as absolute when it comes to state secrets as the United States is with our First Amendment.

So it remains to be seen whether Assange will stand trial for publishing classified material and whether, if found guilty, his conviction would be affirmed by the Supreme Court. Regardless of the ultimate outcome, it was a mistake in my view to bring this indictment. In light of the earlier indictment, this one serves only to chill freedom of the press and to empower the government to selectively prosecute its media critics.

Those who seek to justify the indictment argue that Assange did more than merely publish materials stolen by Chelsea Manning and Edward Snowden. They claim that he worked closely with these sources and was, therefore, an accessory to their crimes. First, the government need not prove that in order to prevail on this current indictment. All it needs to prove is that he published the stolen classified material. Second, many mainstream journalists work closely with their sources, sometimes even encouraging them to go back and get additional information to publish.

If Congress wants to make it a crime to work with sources who have stolen classified material, it ought to articulate the criteria and elements required to prove such a crime. Leaving it to the “accessory” statutes threatens to stifle legitimate information gathering by journalists acting in the public interest. The Assange case is just beginning. It will have to overcome a number of legal and diplomatic barriers before he can be brought to trial.

The Justice Department of the Trump administration is fully aware of this. It may think that the indictment itself, even if it does not result in a final conviction, will achieve its purposes. But because these purposes are inconsistent with a broad view of the First Amendment, the indictment itself endangers our freedoms and warrants some serious very criticism.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.