The First Amendment, like a great party, seems to attract the least reputable people. If the roster of those who have tested its limits the most enthusiastically were a guest list, it might look like this:
- Larry Flynt, who published a mock-up of a Campari ad in Hustler featuring a fake interview with Jerry Falwell about having sex with his mother in an outhouse (“after I kicked the goat out”)
- Max Hardcore, the porn producer who was imprisoned on obscenity charges for making videos featuring consenting adults portraying characters who were underage
- Kathy Griffin, the comedian who lost her job and was investigated by the Secret Service for tweeting a fake beheading photo, ISIS-style, in which the victim was Donald Trump
- Judith Miller, the New York Times reporter who went to prison rather than reveal that Dick Cheney’s advisor Scooter Libby had outed CIA officer Valerie Plame to her, probably in retaliation for an article by Plame’s husband Joe Wilson published in Miller’s own newspaper
Julian Assange—the guy who graduated, like, seven years ago, but can finally grow a beard—has now shown up to the party, and promptly been asked to leave. On Thursday, as Assange was removed from the Ecuadorian embassy in London by UK authorities to face possible extradition to the US, press freedom advocates all seemed to sigh heavily and in unison—like parents forced to pick up their hard-partying kids.
Press-freedom cases are a mangy bunch. Drill deep enough into the stories of the people mentioned above and you will see that all of them were prosecuted or otherwise punished for some bizarre and tasteless variation on an activity journalists have to perform every day. And for better or worse, we have to be on their team.
Assange has been credibly accused of rape, twice—once by a woman who is now seeking to have her case reopened in Sweden. Assange also distributed emails and documents that had been stolen from the Democratic National Committee and the 2016 Hillary Clinton campaign, some of which were then altered, probably by the Russian security service the GRU or one of its proxies, as part of an initiative by the Russian military to support the election of Donald Trump.
The problem for free-press advocates is that Assange is being indicted by a federal grand jury for something else entirely. A March 2018 indictment, unsealed on Thursday, alleges that, in 2010, Assange went beyond the behavior case law is generally understood to allow of journalists: he offered to help US Army intelligence analyst Chelsea Manning break the encryption on a password in the hopes of acquiring further sensitive information. She had already sent information about activity in Iraq and Afghanistan to him for publication and dissemination to other publishers around the world.
It’s important to remember of what immense value, both to the general public and to journalists in particular, that information was. At the cost of years of her life, Manning revealed the careless massacre of civilians by foreign militaries in Afghanistan. The most memorable of these is the horrific video of American soldiers in 2007 killing a dozen civilians—including two Reuters photographers—and then laughing about it. Reuters knew this recording existed; staffers at the organization had been shown it by the Pentagon in an off-the-record briefing and then told to file a Freedom of Information Act request to acquire a copy they could use on the record. Then the Pentagon blocked the request. Manning stole and released the video, and evidence of other atrocities, including the French military strafing a bus full of schoolchildren in Afghanistan.
The law under which Assange is being prosecuted, the Computer Fraud and Abuse Act, is famously overbroad and blunt, especially when applied more than 30 years after its passage in 1986. The law criminalizes “unauthorized access” to a computer and has been used to prosecute a whole host of activities, some as anodyne as scraping a public website. It was inspired by the 1983 thriller WarGames, starring Matthew Broderick and Ally Sheedy. The CFAA has a storied history of misuse dating at least to the FBI’s persecution of activist Aaron Swartz for illegally downloading academic articles from database JSTOR, according to a report by Tow Center fellow D. Victoria Baranetsky. Swartz died by suicide before his case could be tried. In no other case besides Assange’s, Baranetsky tells CJR, has a journalist been prosecuted for engaging in journalistic activity.
The language in the indictment is especially worrying because it describes ordinary reporting tactics. “It was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks,” the grand jury writes. “It was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.” I have engaged in these practices, as has most every other investigative journalist working. I hope to engage in them again.
The Knight First Amendment Institute spotted this immediately: “The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy,” Executive Director Jameel Jaffer said in a statement provided to CJR. “Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom—activities like cultivating sources, protecting sources’ identities, and communicating with sources securely.”
Journalists were quick to find fault with Assange’s behavior as documented in the indictment, and to draw a distinction between him and themselves. “Over the years, as a journalist, I’ve been careful to distinguish between accepting info and inducing or helping leakers to break laws to obtain information,” David Corn tweeted. “And Assange has been accused of conspiring with a leaker to hack a classified server.”
But journalists often walk a fine line between simply receiving leaks and going to lengths to search them out. It is, after all, illegal to leak classified material, and thus illegal to encourage someone to commit the crime of leaking. But journalists do receive that material, even though it’s understood that they are forbidden to ask for it. As New York Times reporter Sheera Frenkel wrote, “Several times in the last decade in foreign countries, sources offered to obtain material on my behalf. My answer was always: I can look at something you have, but I can’t tell you to get something for me.” Part of this is, as Frenkel said a little later, a desire to keep one’s sources safe from harm and out of prison. Manning herself languished in prison for almost seven years as a consequence of her contact with Assange, often in solitary confinement, discriminated against cruelly because of her identity as trans, before her 35-year sentence was commuted by Barack Obama, whose administration had also jailed her.
In reality, of course, we do want the kind of material that people like Manning brought Assange even if we’re not allowed to say so. This is the stuff of which journalism awards are made. The US government in particular often declares documents, court filings, and recordings off limits not because they endanger lives but because they endanger reputations and careers built on prosecuting ruinous wars and terrorizing defenseless people.
And it also, often, looks for ways to make any efforts to acquire that kind of embarrassing material illegal. If a reporter receives classified documents a contractor stole from an employer, are they a fence, like a pawnbroker buying a stolen bicycle? Michigan Congressman Mike Rogers thinks so and former FBI director James Comey declined to contradict him in a hearing before the House about Edward Snowden.
The reluctance among members of the press to rally around Assange is understandable, in part because he has tried to wrap himself in a veneer of journalistic respectability even as his tactics changed from the Manning era, from suspect and worrisome to obviously malicious. “It will be interesting to see how the notion of Assange as a beacon of press freedom plays today,” NBC’s Ken Dilanian wrote. “Many believe that if he ever was a journalist, those days ended a long time ago.”
It doesn’t matter if he ever was a journalist. A joke liquor ad making fun of a televangelist isn’t journalism, either, but if Larry Flynt can’t call Jerry Falwell a motherfucker, The New York Times probably can’t call him a bigot. And if the US government can convict Julian Assange in a hacking conspiracy partly for receiving files over the internet and telling a source, “curious eyes never run dry in my experience,” as his indictment states, they can probably prosecute any of us for just about anything we do in the course of reporting.