Julian Assange gained international fame in 2010, after he published a massive trove of stolen US government documents on his website, WikiLeaks. The files exposed government wrongdoing, and while Assange isn’t a journalist in the traditional sense, the publication of the files undoubtedly served a journalistic purpose.
Nine years and innumerable twists in the story later, Assange was arrested by British police in London on Thursday, and the US Justice Department unsealed a criminal indictment against him. Prosecutors want to extradite him to face a criminal charge in Virginia.
Press freedom advocates have long feared that the government would move to punish Assange, and on Thursday it at first seemed as if their worst fears were coming true. But the government threw an unexpected curveball. Instead of charging Assange with crimes related to publishing the stolen documents, which would have raised serious press-freedom and constitutional concerns, they charged him only with “conspiracy to commit computer intrusion.” In other words, they accused Assange of a hacking-related crime, not a publishing crime.
If that’s it — if the feds stick to the conspiracy charge and don’t try to tack on new charges once they have their hands on Assange — then it will mollify the most serious concerns of free speech advocates. To more fully address these concerns, the Justice Department could confirm that it does not intend to charge him for espionage related to the material WikiLeaks published. (If evidence of other crimes emerges unrelated to the publication, the government should prosecute.)
The single charge unsealed this week dates to 2010, when Assange, according to the government, conspired with former Army intelligence analyst Chelsea Manning to hack into a US government computer and steal secret documents. If convicted, Assange faces up to five years behind bars.
The First Amendment doesn’t cover theft, and a legitimate news organization would no more hack into a computer than it would break into a house. Sources sometimes do break the law on their own volition — as Manning did to access other caches of government files — but reporters can’t participate in lawbreaking. That’s a bright-line rule for American media, and if the government can prove Assange crossed it, he’ll have to face accountability.
The problem is that the government has reportedly considered broader charges — and that’s where the Assange case could become alarming.
Although the hacking attempt for which he was charged apparently failed, Assange did publish documents that Manning pilfered on her own. Publishing them is exactly what the First Amendment should protect, no matter how unconventional the publication may be.
There is a century-old law on the books, though, that seemingly provides a way to prosecute a journalist for publishing classified information, even if he or she otherwise broke no laws. The Espionage Act of 1917 has never been used for that purpose, and some legal scholars believe it would be held unconstitutional if it were. Still, even if prosecutors ultimately failed, an attempt to prosecute Assange for an espionage offense would send a chilling message to anyone who sought to expose government wrongdoing. Publishers can be sued for libel in the United States, but they shouldn’t be imprisoned for what they publish; an Espionage Act prosecution of Assange would be a statement by the Trump administration that it wants to eliminate that protection.
An additional wrinkle is that the US government considers Assange a tool of Russia. That also is not necessarily a crime: He’s allowed to have an agenda, even one as noxious as helping Russia elect Donald Trump.
To defenders of Assange, the hacking-related charge is a blatant pretext, a technicality the government came up with to punish him for disclosures that embarrassed the US government. But as long as the government focuses on computer crimes, it’s a reasonable prosecution — and Assange isn’t the free-speech martyr he clearly believes himself to be.