It is called “the New York Times problem,” but it could just as easily be called “the Tribune problem.”
“The New York Times problem” is a legal boundary spelled out in 2013 when the Obama administration had significant internal debates about whether to prosecute WikiLeaks or its founder, Julian Assange.
The Obama Justice Department took a hard look at Assange, the renegade publisher who starting in 2010 released classified information leaked by then-soldier Chelsea Manning. Those revelations embarrassed the U.S. government by exposing alleged war crimes, civilian losses and other possible misconduct in Iraq, Afghanistan and Guantanamo Bay. Justice Department officials ultimately chose restraint, concluding that if they indicted Assange, they would have had to pursue The New York Times and other news outlets that had published some of the material.
In other words, it would have required crossing an important First Amendment boundary. To charge Assange, they would have to criminalize the same journalistic practices used by the Times, the Tribune and CNN. Media outlets large and small, traditional and online, are in the business of publishing scoops, leaks and all sorts of information that powerful people do not want the public to know.
Donald Trump, however, had no compunctions about overturning Barack Obama’s decision and cracking down on press freedom when he became president.
His administration’s hostility toward the press — and by extension, the First Amendment — was among the most disgraceful aspects of the Trump presidency. Trump spoke of toughening libel laws, belittled established media outlets, mocked reporters and toyed with White House press access. His heated rhetoric rightly drew condemnation from the media, but his use of the Justice Department to go after sources and journalists was far more dangerous.
The Justice Department’s indictment of Assange was a clear signal that Trump’s antipathy toward the press was more than just rhetorical bluster. As journalist Glenn Greenwald, co-founder of The Intercept, phrased it, the move relied on legal theories that are part of “an entirely different universe of press freedom threats.”
The initial indictment against Assange was narrow: one shaky count of conspiracy to commit computer intrusion. That fact, combined with years of news coverage painting Assange as an unsympathetic figure, resulted in a tepid response to the indictment from mainstream news outlets. Some spoke up. Others, including the Tribune, took a wait-and-see approach.
Assange was arrested more than three years ago. The Trump administration tacked on 17 counts under the Espionage Act, all of them centered on Assange allegedly obtaining or disclosing so-called “national defense information” — in other words, receiving information from a source and then publishing it. His lawyers have said he faces 175 years in federal prison.
The expanded indictment drew stronger condemnation. The New York Times Editorial Board wrote that “it is aimed straight at the heart of the First Amendment.” The Guardian lamented that no one had been punished for the crimes that WikiLeaks had exposed and found that the charges against Assange “undermine the foundations of democracy and press freedom.”
News media outlets should be unanimous in their outrage that President Joe Biden has followed in Trump’s footsteps and continued to pursue this dangerous case.
The Tribune has done a commendable job providing space for those arguing against the government’s pursuit of Assange, running letters to the editor and even reprinting an op-ed by Assange himself.
But the Tribune Editorial Board’s stance has left much to be desired.
The Tribune Editorial Board call in 2018 for Assange to be expelled from London’s Ecuadorian embassy poisoned the well by amplifying smears and factual errors about the case and generally failed to appreciate the case’s broader implications for journalists, publishers and whistleblowers.
When the Ecuadorians revoked Assange’s asylum, and police arrested him in London, the editorial board characterized the development as overdue. The Tribune published a column by Steve Chapman a few days later that framed Assange’s indictment as a “victory for press freedom.”
Chapman’s take was pretzel logic: His suggestion that the American Civil Liberties Union and the Freedom of the Press Foundation “should be relieved, if not enthusiastic” strains credulity. The Espionage Act charges that followed in May 2019 have nothing to do with “hacking” and everything to do with industry-standard newsgathering and publishing activities.
James Goodale, former general counsel and vice chair of The New York Times, has called on editorial boards throughout the country to condemn the prosecution of Assange. To Goodale, who represented the Times in four U.S. Supreme Court cases — including the landmark Pentagon Papers case — the true danger lies in moderate figures, such as Biden, perpetuating Trump’s repressive, anti-journalism policies.
In a way, “the New York Times problem” is a microcosm for recent administrations’ perspectives on the rule of law and freedom of the press. The Obama administration showed restraint. The Trump administration showed recklessness and contempt.
Attorney General Merrick Garland’s failure to reject the Trump-era indictment against Assange risks the erosion of the First Amendment safeguards that protect reporters and publishers. Even if Assange is never convicted, the chilling effect on investigative journalism increases with each day that Assange remains locked in a maximum-security London prison fighting extradition. If he were to be flown to the United States for trial, the damage to press freedom would be immeasurable.
Biden backers often portray the president’s legacy in opposition to Trumpism, and Biden himself has called journalists “indispensable to the functioning of democracy.” With the midterms approaching, if Biden truly wishes to roll back the authoritarian abuses of the Trump era, he should have a problem with “the New York Times problem.”
Outlets such as the Tribune must follow the lead of the Times and the Guardian, increasing the pressure on Biden to dismiss the charges against Assange and to return us to safer, saner territory.
*Stephen Rohde/ Constitutional lawyer, author and past chair of the American Civil Liberties Union of Southern California.
[Chicage Tribune/ WikiLeaks]