By Noah Feldman
The arrest of Julian Assange presages a free-speech debate that we’ve been avoiding for the seven years he was living in the Ecuadorean Embassy in London: Can Assange be lawfully prosecuted for somehow facilitating illegal theft of classified information? Or is the organization he founded, WikiLeaks, protected by the First Amendment when it publishes documents supplied by others, like the New York Times when it published the Pentagon Papers?
Current law is not especially clear on this question. The actual 1971 Pentagon Papers case, New York Times v. United States, wasn’t about punishing the Times after the fact. It was about the distinct (albeit related) question of whether the government could block the publication of classified material before it hit the newsstands — what First Amendment lawyers call “prior restraint.”
The Supreme Court’s answer was no, the government can’t block a newspaper from publishing classified material that it has received without committing any legal wrong on its own.
The right to publish, however, leaves open the possibility of prosecuting anyone who actively violates national security law by disclosing classified information — in other words, punishing the leaker. It’s on this logic that Chelsea Manning, a former U.S. Army analyst, was convicted and imprisoned in 2013 for leaking classified military files and diplomatic cables to WikiLeaks. (Her sentence was commuted by President Barack Obama before he left office in 2017) And no one doubts that Edward Snowden — the former National Security Agency contractor who gave secret documents to WikiLeaks before escaping to Russia — could be convicted in U.S. court if he were captured, arrested and tried.
The difficult question lies in between: What about a person or institution that in some way coordinates with the initial leaker? Under ordinary criminal law principles, an accomplice or someone who aids and abets a felony can be charged with a crime. Arguably — and of course depending on the facts — someone who coordinates with a leaker to receive and publish unlawfully leaked information could be subject to criminal penalties.
That’s the crime the government says Assange committed. In a news release, the Department of Justice said Thursday that Assange helped Manning crack a password while she was taking information from government servers. If the government can prove that, it looks like a genuine crime of participating in the hacking.
Mere encouragement is a closer call. The Justice Department says that “during an exchange, Manning told Assange that ‘after this upload, that’s all I really have got left.” To which Assange replied, ‘curious eyes never run dry in my experience.’”
The government may say a jury should decide if this is aiding and abetting in the form of encouragement. That’s worrisome. Some forms of encouragement would count as aiding and abetting, but the government should be especially cautious about charging that when free speech rights are in question.
Because of all the gray area around Assange’s involvement in the Manning case, we might wonder why the government isn’t charging Assange in connection with the investigation into Russian efforts to meddle in the 2016 presidential campaign.
After all, we know that Assange was in touch with Roger Stone and Jerome Corsi, associates of Donald Trump and his campaign, revealing that he had documents that Russian intelligence had hacked from the Democratic National Committee. Our source is documents filed by special counsel Robert Mueller’s investigation.
Mueller indicted 12 Russian intelligence agents who engaged in the hacking in the first place. He charged them with a criminal conspiracy to steal the materials and “stage” the release of the documents “to interfere with the 2016 U.S. presidential election.”
It is plausible that Assange could still be charged with being a participant in this conspiracy. After all, he was the one in charge of the release of stolen DNC documents.
To be sure, Mueller appears not to have obtained sufficient evidence to charge Stone or Corsi for being part of the conspiracy. Assange, however, is a different matter. WikiLeaks was in direct touch with the Russian intelligence hackers, according to the agents’ indictment.
The crucial explanation may be that we don’t know what evidence Mueller’s investigation obtained on what coordination existed between Assange and the Russians.
If there’s evidence that Assange actively participated alongside the Russians, advising them on their leaks or otherwise encouraging them, it would put Assange over the edge from being merely the publisher of the leaks to having been an accomplice in the crime of hacking. In that case, only the most absolutist First Amendment diehards would object to seeing him prosecuted.
Imagine, however, that there isn’t evidence of Assange doing more with the Russian hackers than receiving their information. Under these circumstances, the key to Assange’s alleged criminal conduct would be the charge that he released the Russians’ information to try to affect the outcome of an election.
But that could also be said of a newspaper that agrees to publish leaked information in the middle of a contested election season. Indeed, the First Amendment protects precisely the right of speakers to try to affect electoral outcomes. That’s one of the main goals of the freedom of speech. Political speech has always been considered the core of the freedom.
The main upshot of Assange’s efforts with Russia may be political, not legal.
When Assange went into the Ecuadorian Embassy, it was still possible for liberals to view him sympathetically, the way some liberals saw Snowden and Manning as whistle-blowers for the problems they revealed within the national security state.
Mueller’s investigation assures that Assange won’t be getting much sympathy from liberals.
Nevertheless, liberals and conservatives alike should keep a careful eye on the First Amendment implications of the Assange prosecution — and hope the evidence is clear enough to convict him without chilling the freedom of the press.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.