The Charges Against Julian Assange Attack the First Amendment

It’s a sad day in America when the most appropriate thing to say is the line often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” When basic rights are under attack from the government, the arguments that are called for are neither original nor subtle. On Thursday, the Justice Department announced that it was charging the WikiLeaks founder Julian Assange under the Espionage Act, for his connection to the leak of some seven hundred and fifty thousand confidential military and diplomatic documents, in 2010. The indictment of Assange is an offensive on the First Amendment that is as banal as it is blunt.

Let’s get the “I disapprove” part out of the way first. Assange is a fundamentally unappealing protagonist. He keeps terrible political company. He is, apparently, terrible company himself. In his writing and interviews, he comes across as power-crazed and manipulative. Most important, when he published leaked classified documents, he shared information that exposed people to danger. He is the perfect target precisely because he is unsympathetic. One has to hold one’s nose while defending Assange—and yet one must defend Assange.

The use of the Espionage Act to prosecute Assange is an attack on the First Amendment. Carrie DeCell, an attorney with the Knight First Amendment Institute, summed up the threat in a Twitter thread on Thursday. “The government argues that Assange violated the Espionage Act by soliciting, obtaining, and then publishing classified information,” she wrote. “That’s exactly what good national security and investigative journalists do every day.”

The government has argued that Assange is not a journalist. Most journalists would probably agree: the indiscriminate publication of classified information (or any other information, for that matter), with neither a narrative nor regard for people’s safety, is not journalism in any conventional understanding of the word. But journalism—unlike, say, medicine, law, or architecture—is a profession that any person can practice. There are no licensing or education requirements, and we journalists generally think that this is a good thing: the public can decide which journalists are worth reading or watching, and the law can intervene in those rare cases when journalism causes harm. The last thing we want the U.S. government, or any government, to do is to start deciding who is and who is not a journalist. “For the most part, the charges against him broadly address the solicitation, receipt, and publication of classified information,” DeCell tweeted. “These charges could be brought against national security and investigative journalists simply for doing their jobs, and doing them well.”

Like many Trumpian attacks on democracy, this one is novel but rooted in a long devolution of American institutions—it is a leap, but from a running start. Government use of law against speech goes back at least to the George W. Bush Administration. Prosecutions ramped up under Barack Obama. Prosecutions, however, focussed on whistleblowers and leakers; journalists, who, like the Times reporter James Risen, could be called up as witnesses, were targeted indirectly. But journalism has not been collateral damage in this battle—it has been the target. The Trump Administration has made that clear by jumping the fence that the Obama Administration had merely approached and charging Assange, under the Espionage Act, for practices typical of journalists.

It stands to reason that an Administration that considers the press an “enemy of the people” would launch this attack. In attacking the media, it is attacking the public. The First Amendment, after all, doesn’t exist to protect the right of Assange, or me, or anyone else to say whatever we want. It exists to protect the public’s access to whatever we have to say, should the public find it of interest.