“It very much depends on what the charge is,” prominent First Amendment lawyer Floyd Abrams told me by phone, recalling that the Obama administration came close to indicting Assange years ago.
The Obama Justice Department backed off — wisely, Abrams believes.
They did so because of concerns that a successful prosecution of Assange would mean traditional news organizations could be punished for publishing stolen material.
The New York Times’ publication of the Pentagon Papers in 1971 fits that description.
If publication of government secrets — however they were obtained — can be treated as a crime, there could easily be a chilling effect on investigative journalism. And citizens are then deprived of crucial information they would never know about otherwise.
“The notion that the federal criminal charges could be brought based on the publication of truthful information is an incredibly dangerous precedent to set,” Assange’s attorney Barry J. Pollack said Friday.
The background, of course, is that WikiLeaks published thousands of emails from Democrats during the presidential race that were stolen by Russian intelligence officers.
The big question, Abrams said, is whether Assange not only received the emails but also actually participated in the Russian hack. (Assange’s story is nothing if not weird: He has been holed up in the Ecuadoran Embassy in London for years, initially avoiding Swedish authorities over an investigation into rape and sexual assault allegations.)
“If he was working with the Russian government,” Abrams said, “we’re more firmly into what the Espionage Act deals with.” The 1917 act, which has been described as singularly opaque, has been used in recent years to pursue those who leak government secrets and, at times, journalists, too.
Abrams has been drawing a distinction for years between Assange and traditional publishers. In a 2010 Wall Street Journal opinion piece, he called Assange “no boon to American journalists” and criticized him for providing little context or judgment in revealing government secrets.
Still, Abrams sees the dangers for press freedom: “There’s an inherent tension between the Espionage Act and protecting free speech.”
It may be that Assange has crossed an important line and deserves prosecution.
But press-rights advocates are justifiably worried.
Assange may not be a journalist, and he may be far from admirable for all kinds of reasons.
But as Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, wrote on Twitter, “The prosecution of Wikileaks for publication of classified info — if that’s the focus of the indictment — would represent a profound threat to press freedom.”
Granted, there’s a lot that’s unknown here. And with the charges against Assange under seal, that may be the case for quite a while.
But, in the meantime, here’s something to keep in mind:
You can dislike Assange.
You can consider him unethical — a far cry from journalists who apply a rational filter in publishing governments secrets.
You can be disgusted by the political effects of his publishing the Democratic emails.
But it would be a mistake to confuse any of that with what’s ultimately good for press freedom in the United States.
(c) 2018, The Washington Post