WASHINGTON – As Wikileaks founder Julian Assange’s legal team makes its last appeal to prevent an extradition to the United States over Espionage Act charges, press freedom experts said they are concerned about how the case could harm journalists’ First Amendment rights.
“It’s penalizing the press after the presses have run,” James Goodale, a former general counsel for the New York Times, said in a Tuesday phone interview with Capital News Service.
The appeal hearing began Tuesday and continues Wednesday in London’s High Court. If the court rules against Assange, he would be sent to the United States for trial within 28 days unless the extradition proceedings are stopped by the European Court of Human Rights.
Assange is charged in relation to his 2010 release of U.S. government documents, leaked by then-Army intelligence analyst Chelsea Manning, which revealed details of civilian death tolls in Iraq and Afghanistan. The Wikileaks founder is charged for conspiring with Manning to hack into a Pentagon computer to release confidential military documents.
The Espionage Act of 1917 was enacted during World War I to prevent people from sharing government secrets that could harm national security. The act has since been used against spies and sources who send secret information to journalists, typically whistleblowers inside government agencies.
The act has never been successfully used against journalists or publishers of documents leaked to them by sources.
This shift in how the Espionage Act could be used is concerning for Seth Stern, the director of advocacy at the Freedom of the Press Foundation.
If the U.S. government wins this case, Stern said, it would set a precedent to prosecute “routine” investigative journalism. Even if no journalists are convicted under the espionage law, such a ruling could cause publications to self-censor over fears of government retribution, he said.
“We’ll never know how much valuable news and valuable reporting we’re missing out on because newsrooms weren’t willing to take that risk,” Stern said.
This fear led Stern to write a letter to Attorney General Merrick Garland calling for charges to be dropped against Assange. The letter, later signed by over 35 law professors, pointed to a 2001 Supreme Court ruling in which justices argued that journalists have the right to publish true information even if their source obtained that information illegally.
“Obtaining and publishing government secrets is essentially the job description for an investigative journalist,” Stern said.
Goodale, who signed Stern’s letter, was general counsel for the New York Times in the Pentagon Papers case, known as New York Times Co. v. United States.
The Supreme Court ruled in favor of the newspaper in 1971 after the Nixon administration temporarily stopped newspapers from printing leaked documents about the Vietnam War, citing security concerns and the Espionage Act. The case is known for barring prior restraint by the government, thus allowing journalists to publish leaked information and protecting reporters from government interference.
Now, Goodale believes that the case against Assange could undo the work he did on the Pentagon Papers case. Instead of stopping reporters before they publish – as Nixon’s Justice Department tried to do – this case, if Assange is convicted, would punish reporters after they publish.
“This is the other side of the Pentagon Papers case,” Goodale said. “I do not want that victory to go to waste if, in fact, the courts turn around and say, ‘Well go ahead and publish it – but if you do, we’re gonna put you in jail.’”
He noted that journalism technology has advanced since the newspaper-centric days of the 1970s. Now reporters publish faster than ever before, meaning that it has become nearly impossible for the government to block publishing a story, he said.
“If all criminal action is in favor of the government … the victory of the Pentagon Papers case becomes relevant only to an earlier technological time,” Goodale said.
As with the Pentagon Papers case, Goodale said the government has failed to prove damages to national security caused by the leaks.
“No real damage to national security has taken place as a consequence of the publication by Julian Assange,” Goodale said. “The government has, for over 15 years now, had the ability to prove damage, or tell us, the American public, what the damage is, and they can’t tell us.”
The case against Assange has gone through multiple administrations. The Obama Justice Department originally considered charging Assange under the Espionage Act, according to the Committee to Protect Journalists, but decided not to after considering the potential pushback from journalists.
The Trump administration indicted Assange in 2019 and the Biden administration has continued to pursue Assange’s extradition despite calls from prominent media publishers to end the prosecution.
Jodie Ginsberg, the CEO of the Committee to Protect Journalists, said in a statement Tuesday that the prosecution of Assange “would have disastrous implications for press freedom both in the U.S. and globally.”
This reiterates the committee’s 2022 position, in which it called the Assange prosecution “hostile to the media and democracy itself.”
State Department spokesperson Matthew Miller said during a Tuesday briefing that while the government supports an independent free press, hacking into a government computer is a crime.
“It is true that at times the publication of classified government documents will inform the public and sometimes it will uncover wrongdoing, it’s also true that sometimes the publication of classified government documents serves no underlying purpose and can jeopardize sources and methods that the government uses to keep the American public safe,” Miller said.
Assange is a controversial figure to many around the world due to his political stances, methods of gathering information and previous interactions with the law – including a rape allegation. Others question if Assange qualifies as a journalist.
But Stern said “it’s a distraction to focus on Assange the person.”
“Legal precedents aren’t limited to one individual and can be applied against whatever journalists might get on the bad side of this administration or a future one,” he said.