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Will the First Amendment Save Assange?

The UK has extracted promises that prosecutors would recognize speech protections for the Wikileaks founder.


A British court ruled that Julian Assange, the founder of Wikileaks, can appeal his extradition to the U.S. How Assange’s case plays out may change both the way the 1917 Espionage Act cases are defended and the deeper relationship among the Act, the 1A, and a free press.

The U.S. charged Assange multiple times under the Act for an alleged conspiracy to take possession of and publish national defense information. Had the British court ruled in the U.S. government’s favor, Assange would have exhausted all legal avenues in the UK. Instead, he can now fight the extradition to the U.S. from the relative safety of Britain.


The allegations stem from 2010 when WikiLeaks released half a million classified documents, focused on Iraq and Afghanistan, that were leaked to the site by Chelsea (formerly Bradley) Manning, an Army intel analyst. Included in the leak was video from Iraq showing American helicopters gunning down Iraqi civilians, later dramatized in the film Incident in New Baghdad. Assange’s legal team argues the case is a politically motivated form of state retaliation for embarrassing the United States.

Following charges by the U.S. government, Assange was granted asylum for seven years in the Ecuadorian embassy in London. Assange was then arrested by British authorities for skipping bail, and has spent the last five years in a dank British prison fighting extradition to the United States. His spouse calls it “punishment by process.”

In February, Assange’s lawyers submitted grounds for a possible appeal. The High Court in response directed the U.S. government to provide assurances that: a) Assange would not face the death penalty; b) he would be treated no differently than a U.S. citizen; and c) he would be protected under the First Amendment. The U.S. government provided such assurances in a letter. The British court was unconvinced, and will allow Assange to appeal the extradition request.

Of the three conditions, the key issue is whether or not Julian Assange can raise an effective First Amendment defense against the Espionage Act. Could Assange claim, for example, that his right to publish the leaked materials was protected as a publisher and journalist under the First Amendment, in the public interest?

The Justice Department previously told a British court the First Amendment doesn’t apply to anyone “in relation to publication of illegally obtained national defense information giving the names of innocent sources to their grave and imminent risk of harm.” Use of a 1A public interest defense by Chelsea Manning was blocked and her attempts to speak to the American people directly were stymied by seeing her entire trial classified.


“The short answer is that being able to 'raise' a defense is different than being able to ‘rely’ on one,” said former Assange attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Program (WHISPeR, at Expose Facts) speaking with TAC. “In Espionage Act cases, the government has literally done motions to preclude the use of the words ‘First Amendment.’ I can easily see that happening here, as well as motions to preclude 1A related words like ‘journalist’ and ‘publisher.’ Assange can raise the First Amendment. He can raise a herd of goats if he wants. The better question is whether Assange would be allowed a 1A defense.”

Under such circumstances any British court willing to accept a USG assurance Assange would have First Amendment rights in any practical sense is being played as a fool.

But the Assange case begs a bigger question the British court might ask if it was concerned about fairness to Assange: why is it only him, and not outlets like the New York Times, which also published the leaked material, on trial? Why not also the Guardian, the Washington Post, and NBC News?

Under the Espionage Act, the unauthorized possession of classified materials alone would ensure a guilty verdict, irrespective of intention. The Act does not distinguish journalism and, well, espionage. Assange would be found guilty and simultaneously be denied the chance to defend himself based on a free speech defense.

Assange poses a dilemma for the United States in its ongoing muscle-tussle in balancing the power of the government to protect classified information, the guarantee of a free press, and the broader concept of the need for an informed populace to challenge their government and make this democracy work in practice.

At what point does the need for the people to know something outweigh any laws allowing the government to keep it from view? If punishment appears necessary, should the leaker be punished, should the journalist who publishes be punished, or should neither, or both? In the digital age, where physical documents no longer need to be copied one-by-one and there is less restraint than in the traditional media, these questions have become more pressing.

A complex history precedes Assange. In 1971, Daniel Ellsberg leaked the Pentagon Papers to the New York Times. At that time, no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act.

The Supreme Court instead handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won a Pulitzer, but Ellsberg was charged under the Espionage Act. His case was ultimately dismissed for gross governmental misconduct and illegal evidence-gathering. The underlying issues, most prominently Ellsberg's defense that he was morally compelled to leak to the Times, were never addressed.

Looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “Although the First Amendment separately protects the freedom of speech and the freedom of the press... 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."

The Supreme Court left the door open for the government to prosecute both the leaker (by dismissing the Ellsberg case without setting a precedent) and the journalists (with a narrow focus prohibiting the government from exercising prior restraint on the Times.)

What has happened since has been little more than a dance around the 500 pound gorilla loose in the halls of democracy. The government aggressively prosecutes whistleblowers under the Espionage Act while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them. Assange’s case seems to stand as an outlier.

Did Assange commit journalism? He wrote nothing alongside documents on Wikileaks, did no curating or culling, and redacted little information. Publishing in his case consisted simply uploading what had been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections -- clicking upload isn't publishing and Assange isn't a journalist they could say. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would then apply. Guilty, the same as almost all of the leakers and other canaries in the D.C. coal mine.

Yet like the Times, Wikileaks sidestepped the restraints of traditional journalism to bring with immediacy the raw material of history to the people. That is the root of an informed public, through a set of tools never before available until the Internet and Julian Assange created them.

The British court needs to carefully weigh any faux U.S. promises of 1A rights for Assange, and ask itself instead: is he being singled out for punishment, criminalizing journalism? President Joe Biden is already considering an Australian government request to drop Julian Assange’s charges. The British court should stay the extradition and ultimately release Assange for doing nothing but what the New York Times and others have done before him.