After five years in captivity by British authorities complying with an extradition request to the U.S., Wikileaks founder Julian Assange has been released after a plea deal with the U.S. that allows him to return to his home in Australia.
Assange had been sought by authorities since at least 2010 after sexual assault charges in Sweden that Assange denies, when he turned himself into British authorities in 2012, and then fled to the Equadorian embassy in London, where he stayed until 2019. Then, after a successful appeal blocking his 2022 ordered extradition through May 2024, he agreed to the plea bargain.
The U.S. interest in Assange was owed to his publishing classified documents on Wikileaks obtained from Chelsea Manning in 2010 and 2011, raising questions about the freedom of the press under the First Amendment of the U.S. Constitution.
These concerns in modern history date back at least through the Supreme Court’s decision in New York Times v. U.S. in 1971 when the government used an injunction to block publication of the infamous Pentagon Papers, a then-classified study named “History of U.S. Decision-Making Process on Viet Nam Policy,” which are available today for public viewing online via the National Archives.
In that case, the Supreme Court held that regardless of how the information had been obtained, the New York Times had a First Amendment right to publish it, stating simply that the government had not met the “heavy burden of showing justification for the imposition of such a restraint,” concurring with the U.S. Circuit Court of Appeals for the District of Columbia.
Writing the majority opinion was Justice Hugo Black, who stated, “The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell…”
Since 1971, then, the tentative precedent appears to have been that if a newspaper obtained classified information, it could be published.
But that has been nipped away over the years. For example, in 1972, Branzburg v. Hayes held that reporters could not use the First Amendment as a shield against testifying before a grand jury: “The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.”
Ultimately, this precedent would be used to attempt to compel reporters to reveal their sources of classified information, including the case of Judith Miller and Matthew Cooper, who were held in contempt by the U.S. District Court for the District of Columbia over their refusal to comply with subpoeanas to find who their sources were in revealing that Valeria Plame was a CIA agent.
The U.S. Circuit Court of Appeals for the District of Columbia — which had once ruled the New York Times had the right to publish the Pentagon Papers — upheld the contempt charge in 2005, and Miller had to serve out her 18-month sentence, while Cooper agreed to testify after his source allowed it. The U.S. Supreme Court refused to hear the case.
The Assange case takes that a step further, where he will plead guilty to a violation of the Espionage Act for “conspiring to unlawfully obtain and disseminate classified information relating to the national defense of the United States…” That, even though Chelsea Manning was the one who had sent the classified information, which included video of U.S. forces shooting at civilians in the Iraq and Afghanistan wars, to Assange.
Once again, the publisher can and will be targeted for government sanction, and courts are going along with it. In the case of Manning, the sentence was commuted by former President Barack Obama in Jan. 2017 on his way out of office. Now Assange appears to be admitting that he had sought this information out,
Which was the whole point of Wikileaks, which was set up to receive tips: to receive secret information for public dissemination. Wikileaks was originally organized to avert the disclosure problem by making tips anonymous, which the government has now defeated.
Building on the precedent set in the Judith Miller case, the freedom of the press after Assange’s guilty plea is almost certainly weaker than it was. The only edge that seems left is if an official source sends classified information to a reporter anonymously without the reporter’s prior knowledge, or as in the case of Edward Snowden, the tipster reveals himself publicly to avoid entrapping the journalists.
But will that ultimately stop the government? What if the reporter asks any questions about what has been received including questions around context? For example, in the Snowden case, the reporters might have asked what Prism was or how the mass surveillance was being conducted. Wouldn’t that be “conspiring to unlawfully obtain and disseminate classified information relating to the national defense of the United States…” too?
It would appear barring further guidance from the Supreme Court and/or Congressional action to officially create a reporters’ privilege — raising significant concerns about Congress defining freedom of the press as anything but an individual right and one only reserved for “elite” journalists — the Assange conviction appears to essentially put national security reporting out of business except for officially sanctioned leaks from the government.
As the U.S. Circuit Court of Appeals for the District of Columbia ominously noted in upholding the contempt charge of Miller, “The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
Now, the privilege is down to elite prosecutors arbitrary decisions to bring cases against journalists when it serves a political purpose.
The cost is that journalists have been put on notice: The government will ultimately win these cases. Report what the government tells you and don’t deviate from the narrative — or else.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
