This weekend I joined a number of people for an online vigil in support of Wikileaks’ Julian Assange. Some have asked why I did it: after all, Assange is at best an imperfect figure. But supporting Assange transcends just him, because the battle over his prosecution is about something greater: the future of free speech and a free press. Even if you think Assange doesn’t matter, those things do.
Assange is challenging to even his staunchest supporters. In 2010, he was a hero to opponents of the wars in Iraq and Afghanistan, while others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a traitor and a Putin tool for releasing emails from the Democratic National Committee. Even with the sexual assault inquiry against him having been dismissed, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words “generous,” “warm,” and “personable” are rarely included in their descriptions.
But none of that matters. What matters is that Assange has ended up standing at a crossroads in the history of our freedoms: specifically, at what point does the right of the people to know outweigh the right of the government to keep information from view? The question isn’t new, but it has become acute in the digital age, when physical documents no longer need to be copied one-by-one, can be acquired by hackers on the other side of the world, and are far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.
A complex history precedes Assange. In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge had censored a newspaper. In the end, the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States, and the Times won the Pulitzer Prize.
But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out that
… although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause…. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy. The government, meanwhile, has aggressively used the Espionage Act to prosecute whistleblowers who leak to those same journalists.
The closest a journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information that it said had appeared in his book State of War. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison only to emerge three and a half years later in January. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight.
Those same issues now hover over Julian Assange. Should the government decide to prosecute him, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support and work for established media. The elements of fact checking, confirming, curating, redacting, and providing context around classified information were all present in the New York Times case with the Pentagon Papers; they are also present with American citizens Risen and Greenwald. Definitions and precedents may be forming.
Assange is an easier target. With him the government is able to mold the legal precedents with such certainty that, where they backed away from other cases in their long-running war of attrition against free speech and the press, this one they may seize.
Assange isn’t an American. He is unpopular, drawn now into America’s 21st-century Red Scare. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied to him. The government could argue that Assange is not entitled to First Amendment protections simply by claiming that a mouse click isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmittedinformation relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.
And that really, really matters. Wikileaks does indeed sidestep the restraints of traditional journalism. In 2004, the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006, the Los Angeles Times suppressed a story on the government’s wiretapping of Americans when asked to do so by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, or “obsequious journalism,” as he called it. Meanwhile, Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. And the public is better informed because of it.
Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can read the stuff yourself and make up your own damned mind. That is the root of an informed public, a set of tools never before available until Assange and the internet created them.
If Assange becomes the first successful prosecution of a third party under the Espionage Act, whether as a journalist or not, the government will turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange leaves London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.
Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.