First Amendment experts split on what Julian Assange indictment means for journalists
Bob Egelko
April 11, 2019 Updated: April 11, 2019 8:09 p.m.
Julian Assange leaves Westminster Magistrates' Court, where he was found guilty of breaching his bail, in London, Thursday, April 11, 2019. A bearded and shouting Julian Assange was pulled from the Ecuadorian Embassy in London and hauled into court Thursday, the start of an extradition battle for the WikiLeaks founder who faces U.S. charges related to the publication of tens of thousands of secret government documents. (PA via AP)PA / Associated Press
Word of the forthcoming indictment of Julian Assange sent shudders through many journalists and their advocates. If the founder of WikiLeaks could be prosecuted for publishing government secrets, what about the New York Times, or The Chronicle?
Those fears may have been dispelled somewhat on Thursday when the Justice Department released the indictment it had obtained from a federal grand jury in March 2018. Assange was not charged with espionage for publishing state secrets, but with conspiring to obtain those secrets by allegedly trying to help Army intelligence analyst Chelsea Manning hack into government computers.
In March 2010, Assange "agreed to assist Manning in cracking a password" in Defense Department computers that would have made it harder for investigators to identify her, the indictment said. While he may not have succeeded in that effort — he allegedly told Manning two days later that he had had "no luck so far" — he is not directly charged with violating national security by obtaining secrets and distributing them to news media worldwide.
"I'm relieved the indictment does not allege the act of publication was a criminal offense," said David Snyder, executive director of the First Amendment Coalition, a media advocacy organization based in San Rafael. "I think press advocates are, to some degree, breathing a sigh of relief that they didn't try to charge Assange under the Espionage Act."
Michael McConnell, a Stanford law professor and former federal appeals court judge, said the indictment's central allegation — that Assange conspired with Manning to obtain and publish secrets — "distinguishes the case from those in which one person illegally acquires information and passes it on to the press without any other involvement by the press."
He noted the Supreme Court's 2001 ruling that dismissed a wiretapping suit against a radio station for broadcasting a tape of a conversation that had been illegally recorded by an anonymous source. Because the station had not obtained the information illegally, it did not violate any law, the court said in a 6-3 ruling.
Another legal analyst was not reassured.
"The government's essentially indicted Assange for publishing," said Matt Coles, a law professor at UC Hastings in San Francisco. "The indictment admits that tons of the information he published had nothing to do with the supposed attempt to help (Manning) crack into the computer, and he didn't succeed. Publication is part of the conspiracy."
Coles noted that much of the indictment focused on the information Assange had sought and received from Manning. The indictment said the main purpose of their conspiracy was "to facilitate Manning's acquisition and transmission of classified information related to the national defense of the United States so that WikiLeaks could publicly disseminate the information on its website."
The two acted, the indictment said, "with reason to believe that such information so obtained cold be used to the injury of the United States and the advantage of any foreign nation"— language taken directly from the Espionage Act of 1917, under which Manning was convicted and sentenced to 35 years in prison. She was pardoned by President Barack Obama and released in 2017 after serving seven years, but is now in jail for refusing to testify against Assange.
Assange faces up to five years in prison if convicted under the anti-hacking law.
"Prosecution for publishing is content-based regulation of speech," Coles said, and the Supreme Court should not allow it.
Snyder, of the First Amendment Coalition, said the indictment appeared to be narrowly drawn but was still troubling. He noted that the Obama administration, in office at the time of the alleged conspiracy, had the same information about Assange but apparently decided not to indict him.
The hacking law in the indictment is broadly worded and "could be used nefariously against journalists," Snyder said. "I wouldn't trust the government to distinguish between WikiLeaks and the New York Times."
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter:@BobEgelko
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Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.
His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.