Let’s be clear: I know that many people — perhaps entirely reasonably — really, really dislike Julian Assange and Wikileaks. For some people that feeling has been there for years. For others it’s related directly to the role that Wikileaks played in helping to release hacked emails designed to impact the 2016 election. There certainly appears to be plenty of evidence that, at the very least, Wikileaks was in contact with Russian operatives and made plans to try to get and release documents at times that would have the maximum impact on the election. As I’ve said over the years, I don’t have much respect for Assange who, among other things, often appears to be a total hypocrite. However, I have also made clear that prosecuting him and Wikileaks for doing nothing more than publishing leaked documents would set a horrible precedent. I feel similarly about the DNC’s silly lawsuit as well.
The DOJ has apparently has been trying to indict Assange for more than 8 years now with nothing to show for it yet. In large part, this is because what Wikileaks has done is really no different than what any news publication does when publishing leaked documents. There may be laws against leaking certain documents to the press, but the First Amendment completely bars lawsuits against the recipients of leaks then publishing them.
This is in the news again as reports are brewing that Ecuador is expected to withdraw asylum for Assange, possibly handing him over to British officials, who may in turn hand him over to the US. When I discussed this on Twitter recently, a bunch of people responded angrily that Assange deserves to be in jail because of his role in the 2016 election. But when pressed to explain how what he did was any different than the NY Times or CNN in publishing leaked documents, people go quiet — or the say something silly like “but those other news orgs are based in fact.” But, that’s a silly argument. First of all, nothing that Wikileaks has published has been shown to be false or faked (the DNC made some claims to that effect but no one ever presented any evidence or pointed to any faked documents). Second, given the propensity of some — including the President of the United States — to argue that the NY Times, CNN, the Washington Post and others are “fake news,” do we really want to be setting the precedent that if you publish something false you can get prosecuted for it?
Earlier this year, Avi Ascher-Schapiro published a piece for the Committee to Protect Journalists focusing on the DNC’s silly case against Wikileaks, but much of it could apply to a federal prosecution as well:
The case raises a number of important press freedom questions: Where should courts draw the line between source-building and “conspiring”? What activities could implicate a journalist in a source’s illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?
“There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself,” said David McCraw, deputy general counsel for The New York Times. “The line in the middle is still being determined by the courts.”
David Bralow, an attorney with The Intercept, added, “It’s hard to see many of WikiLeaks’ activities as being different than other news organizations’ actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker.”
Some will argue that Assange should be prosecuted for conspiring with the Russians, but again let’s see what actual evidence there is to support such a claim. And, as we see above, what counts as “conspiring” is pretty important here. Tons of news sites now use SecureDrop or similar means to recruit sources and documents. Is that “conspiring”? Because if it is, that’s a huge blow to press freedom.
Even if you hate Assange and Wikileaks, please take a moment to consider how a prosecution of him for publishing documents, even if they were taken by nefarious means by a hostile foreign government, would set an absolutely terrible precedent for press freedom in America.
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