Could Assange Claim a First Amendment Defense?

04_30_Assange_First_01
WikiLeaks founder Julian Assange looks out of the window of the Ecuadorian embassy in central London on February 5, 2016. Ryan Goodman and Steve Vladeck write that a successful Assange prosecution in the U.S. could pose a troubling precedent for the press. NIKLAS HALLE'N/AFP/Getty

This article first appeared on the Just Security site.

There’s been substantial discussion in the news over the past week about the specter of a criminal prosecution of Julian Assange arising from his role in facilitating various disclosures of classified national security information, and its potential implications for press freedom in the United States.

Much like the Q&A we did back in February about Michael Flynn and the Logan Act, we thought it would be helpful to flesh out why the Assange case could pose such a troubling precedent for the press, and what the major unanswered questions are.

Ryan to Steve : Let me start with a softball question before getting to four tougher ones. Why should journalists, as well as others concerned about freedom of the press, care about whether the government decides to prosecute Julian Assange?

Steve to Ryan : There’s a lot to say here. The problem arises from two related but distinct phenomena.

First, the statute getting the most press here is the Espionage Act ( the relevant provision of which is

§ 793 (e)

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

which could theoretically apply to any third party who willfully transmits “information relating to the national defense,” or even retains it without authorization.

Second, although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause.

So if there’s a First Amendment defense to the unlawful disclosure of classified national security information, the test (if not its application) should be the same regardless of whether the disclosure is by someone we all agree is a reporter, someone who’s actually a foreign agent, or none of the above.

The breadth and concomitant lack of nuance of § 793(e), about which I’ve written previously, may help to explain why the government has almost never tried to prosecute a third party under that provision–and has instead focused on prosecuting those directly responsible for the unauthorized disclosure of national security information ( e.g. , spies and leakers).

The only attempted prosecution of third parties under § 793(e), the 2005 indictment of two AIPAC lobbyists for their role in facilitating the transmission of classified information to Israel, fell apart–but without setting a clear precedent about how the First Amendment would protect unauthorized disclosure of national security information (if at all).

Related: Assange : Google Is Not What It Seems

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information.

Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.

To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied what’s known as Pickering balancing” to assess when the public interest in disclosure outweighs the government’s interest in preserving confidentiality), but even the Bartnicki decision –in which the Court ruled that the First Amendment protects a radio station’s broadcasting of an unlawfully recorded audio conversation–turned to a large degree on the parties’ stipulation that the radio station itself had acquired the recording “lawfully.”

Because of the Espionage Act, there’s no way for a third party “lawfully” to acquire classified national security information that they are unauthorized to possess.

So I’m skeptical that Assange (or the New York Times , for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

That’s not to say that there aren’t incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern.

I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill).

Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law.

And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

Ryan to Steve : What if the government’s case against Julian Assange is based primarily – and let’s say for the sake of analysis, exclusively – on allegations that he was directly involved in procuring classified information?

For example, imagine if Assange specifically encouraged Chelsea Manning or others to disclose the information. In a Washington Post Op-ed, Jonathan Adler wrote “likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?”

But what’s wrong with drawing that line, and telling journalists they can publish classified information that someone hands to them, but they must never be directly involved in encouraging someone with access to classified information to break the law in procuring it?

Related: CIA Chief Pompeo Takes Aim at the Free Press

Steve to Ryan : This is a really important distinction, but the devil is in the details. If the government’s claim against Assange is not about publication or retention of national security information, but instead looks more like a solicitation or conspiracy claim (or some other way in which Assange was directly involved in facilitating the original wrongful disclosure–and can be charged under an accessory theory for the underlying leak), then that might provide a thin-enough reed on which to rest a prosecution without crossing the line discussed above.

But nuance really matters here; Hollywood depictions to the contrary notwithstanding, most leaks don’t involve uncoordinated dead-drops of materials into a journalist’s mailbox, but are rather the result of careful relationship building and cultivation of sources.

That is to say, it’s not as obvious as it might seem at first blush that providing technical assistance to Manning is categorically different (in kind, if not degree) from the kind of newsgathering that produces front-page stories derived from national security leaks, for example.

Some readers might react to this as proof that both examples ought to be prosecuted; I don’t mean to take a position on that here. My point is just that, unless Assange was even more involved in the underlying theft of materials than we’ve been led to believe, there are still serious line-drawing problems.

Ryan to Steve : What if the government’s case against Julian Assange were based exclusively on materials he disclosed that can be shown to have no public interest whatsoever or any evidence of legal wrongdoing on the part of the government?

Imagine if Assange disclosed US troop locations in Afghanistan. In your view would Assange’s action in that case be free speech protected under the First Amendment?

Do you think any of Wikileaks disclosures come close to that line?

Steve to Ryan : Per the above, I’m not especially optimistic that, should it come to this point, courts would recognize a First Amendment defense in Assange’s case.

But that’s why this is potentially such a dangerous precedent: If Assange becomes the first successful prosecution of a third party under the Espionage Act, then that gives the government a whole lot of leverage it might previously have not thought it possessed to be much more aggressive in investigating the media’s role in national security leaks.

Yes, it’s possible to imagine a case in which courts would recognize a First Amendment defense, but by that point the constitutional Rubicon would already have been crossed.

That is to say, the issue is not whether Assange violated the Espionage Act (my own view is that he did), or whether he should have a First Amendment defense. The issue is the precedent it sets for future investigations–and, as such, chilling–of even the most responsible and important national security journalism.

Ryan to Steve : If the government in pursuing a case against Assange stipulated that it was only doing so because it could prove that Assange was motivated to harm the United States would that satisfy you?

Should that satisfy First Amendment critics of a Justice Department decision to prosecute Assange?

Steve to Ryan : Motive has never been a critical factor in Espionage Act cases, and for good reason. If the harm from unauthorized disclosure of national security information is the fact that the information is out there, whether the perpetrator has good or bad motives shouldn’t affect whether the disclosure is or is not lawful.

That’s why Pickering balancing, insofar as it would apply here, looks instead to the extent to which the speech involves a matter of public concern. So even if the reason for the prosecution was because Assange, unlike, say, Times and Post reporters, “was motivated to harm the United States,” the law wouldn’t care–and the precedent would still be set.

That’s why, if you’re asking what would “satisfy” me, the answer would be a theory of criminal liability that wouldn’t draw a straight line to what we would all agree is professional journalism.

Ryan to Steve : Where do you draw the legal limit? There is widespread agreement that the Espionage Act is currently drafted in excessively broad terms. But if you were legal counsel to a congressional committee interested in redrafting the Espionage Act, what elements would you suggest could be left in place with low risk of raising a First Amendment problem?

Steve to Ryan : As it turns out, I’ve testified (five different times) on this exact subject, including at two different hearings that were specific responses to Wikileaks.

The real problem from a First Amendment perspective is that the statute is old and ambiguous–and not drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge.

Here’s how I concluded my testimony at a March 2010 House Judiciary hearing on the Espionage Act and Wikileaks:

First, introduce a clear and precise specific intent requirement that constrains the scope of the Espionage Act to cases where the defendant specifically intends the disclosure to harm national security and/or to benefit a foreign power. . . .

Second, create a separate, lesser offense for unauthorized disclosures and retention of classified information and specifically provide either that such a prohibition does or does not cover the public redistribution of such information, including by the press.

If this Committee and body does decide to include press publication, my own view is that the First Amendment requires the availability of any number of affirmative defenses [including] that the disclosure was in good faith; that the information was improperly classified; that the information was already in the public domain; and/or that the public good resulting from the disclosure outweighs the potential harm to national security.

Third, and finally, include in both the Espionage Act and any new unauthorized disclosure statute an express exemption for any disclosure that is covered by an applicable Federal whistleblower statute.

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).

Steve Vladeck is co-editor-in-chief of Just Security and a professor of law at the University of Texas School of Law.