The New Gatekeepers

Does the Assange indictment pose a threat to journalism?

November 16, 2018

In what appears to have been a cut-and-paste error, a routine filing in a completely unrelated court case revealed on Thursday that the Justice Department has finally laid charges against WikiLeaks founder Julian Assange. The filing was a request for the court to seal all documents related to a case involving a man named Seitu Sulayman Kokayi, but instead of referring to him, the filing used Assange’s name, saying: “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.”

The filing went on to say that the case would need to be sealed “until Assange is arrested in connection with the charges in the criminal complaint and can therefore no longer evade or avoid arrest and extradition.” Both The New York Times and The Wall Street Journal later confirmed through anonymous sources that charges have been laid against the WikiLeaks founder, who has lived in the Ecuadorean embassy in London for six years. Assange claimed asylum in 2012 so that he wouldn’t be charged with espionage by the US (although critics note he was also evading sexual assault charges in Sweden).

While the details of the charges remain unknown, press freedom and First Amendment advocates are afraid prosecution of the WikiLeaks founder could be a slippery slope that would threaten traditional journalists and publishers. Although the shadowy organization is not officially a journalistic one, receiving classified documents from a source and then publishing them is something many media organizations do routinely. Jameel Jaffer of the Knight First Amendment Institute said that “prosecution of Wikileaks for publication of classified info—if that’s the focus of the indictment—would represent a profound threat to press freedom.”

The Justice Department has been trying to come up with a way to charge Assange ever since WikiLeaks first started distributing classified documents in 2010, including military data leaked by former Army intelligence analyst Chelsea Manning (who was later charged with espionage), as well as tens of thousands of diplomatic cables. But the government’s legal teams were reportedly afraid that any attempt to charge Assange for simply receiving and publicizing classified information would run head-first into First Amendment protections for freedom of the press.

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As The Washington Post put it in 2013, the Justice Department ran into a “New York Times problem.” In other words, if the government tried to indict Assange, it would also have to lay charges against the Times and other news organizations who published classified information. A former Justice Department spokesman told the Post at the time: “There is no way to prosecute him for publishing information without the same theory being applied to journalists.” That’s because the First Amendment doesn’t protect traditional journalists or organizations specifically, it protects a free press.

At one point, the government was said to be considering conspiracy charges, based on the theory that Assange could have encouraged Manning to steal the classified information, rather than just being a passive recipient. The Justice Department reportedly spent a lot of time looking through logs of chat discussions between Manning and Adrian Lamo, a former hacker who turned Manning in and later gave evidence against her, saying she bragged about her connections to Assange and how WikiLeaks had set up a private server for her to upload information. But in the end, the Obama administration shied away from charging Assange.

Since then, WikiLeaks has been caught up in the intrigue surrounding the 2016 election and the release of emails from a hacked Democratic National Congress server, emails many believe may have helped swing the election in Donald Trump’s favor. The president at one point congratulated WikiLeaks for doing so, and members of his campaign appear to have been in contact with the organization on a number of occasions. But releasing those emails may have also provided an opening for the Justice Department to indict Assange, provided it can prove he was actively involved in coordinating the hack.

Before it can make that case, of course, the Justice Department would have to get Assange extradited to the US, something that might prove difficult to do unless the Ecuadorean government chooses to give up its protection of him (he could also fight extradition in the British courts if he was arrested there). But regardless of what the US tries to prove about his motivation or behavior, free-press advocates will be watching closely to see whether the attempted prosecution of Assange crosses a line into an attack on journalism in general.

Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.