The Biden administration should abandon a course that could lead to the criminalization of whistleblowers and investigative journalism.
The Constitution does not prohibit assaults on freedom of the press because the notoriously vain founders were fond of the printers, who in the first years of the Republic produced what President George Washington decried as “diabolical…outrages on common decency.”
Washington’s thin-skinned successor, John Adams, had one printer arrested for allegedly libeling the president “in a manner tending to excite sedition and opposition to the laws.” Adams signed the Alien and Sedition Acts, which made it a crime to “write, print, utter or publish…malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.” He then had one of his leading critics, Matthew Lyon, tried and jailed after the representative from Vermont derided the second president’s “ridiculous pomp.” Lyon, it was charged, was “a malicious and seditious person, and of a depraved mind and a wicked and diabolical disposition.” Thomas Jefferson, no stranger to scandal, was similarly uncharitable. He deplored “the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them.”
In other words, the founders rebuked the print publishers of their day with language every bit as venomous as that employed by contemporary US officials when they speak of Julian Assange, the WikiLeaks publisher whom the Biden administration proposes to try on espionage charges stemming from the 2010 publication of evidence of “Collateral Murder” atrocities committed by the US military in Iraq and Afghanistan. Assange attracts bipartisan acrimony. Senate minority leader Mitch McConnell has labeled him “a high-tech terrorist.” Former secretary of state Hillary Clinton, whose 2016 campaign was the target of WikiLeaks data dumps, has said, “The bottom line is [Assange] has to answer for what he has done, at least as it’s been charged.”
Last week, a court in the United Kingdom determined that Assange could be extradited to the United States to face prosecution by the Department of Justice for allegedly engaging in a hacking conspiracy with former Army intelligence analyst Chelsea Manning to reveal classified information.
To hear Assange’s prosecutors and critics tell it, his actions are indefensible. They would afford him no protection under the standards that are applied to preserve the ability of journalists to do their work—and publishers to distribute that work. Why? Because, we are told, even though WikiLeaks has been widely awarded and honored for producing journalism, Assange is “not a journalist.”
But, of course, the Bill of Rights makes no specific mention of journalists. The First Amendment speaks of “the press.” It was crafted in a time when printers distributed controversial, often incendiary screeds against the governing class. The publishers of the post-colonial era were rogues and rabble-rousers who spoke—or, to be more precise, printed—unwelcome truths to power. They knew full well that their publications provoked outrage. Benjamin Franklin, a printer who turned out to be one of the better of the founders, freely admitted as much when he concluded, “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.”
The point of protecting press freedom has never been to privilege inoffensive speech, nor to establish a priestly class of journalists who are somehow deemed by the governing and economic elites to be acceptably employed. The point is to defend the free flow of information that the powerful would prefer to keep secret but that the people have a right to know. This is why Jefferson, on the eve of the 1800 election in which he upended Adams’s assault on press freedom, explained to Elbridge Gerry, “I am…for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.”
If we are serious about protecting the right of those who are widely acknowledged as journalists to track down and publish classified information about what governments do in our name but without our informed consent, then we must defend the right of more controversial printers and web publishers to obtain and distribute the same.
That understanding is supposed to infuse the public discourse about press freedom in the United States. But it only rarely does. Too frequently, prominent political and media voices go silent—or, at least, soft—when real fights over the First Amendment are being fought. It’s particularly concerning that there isn’t a louder outcry now, from across the political spectrum, regarding the prosecution of Assange. One notable exception is US Representative Ro Khanna, the California Democrat who has worked with US Senator Ron Wyden (D-Ore.) to address at least some of the abuses associated with the Espionage Act.
“I oppose the criminal prosecution of Assange,” said Khanna, who explained that “the prosecution of Assange will have a chilling impact on any journalist who publishes information and is a violation of the First Amendment.”
Rejecting the arguments by successive administrations for going after the WikiLeaks cofounder, Khanna told me last week, “Assange did many morally suspect things, by failing to redact the personal information of civilians and putting them in harm’s way, and also coordinating the timing of his releases to wreck havoc in the 2016 election. But one can condemn Assange’s actions while not setting a precedent of criminalizing the publication of material that challenges state power.”
That’s a proper balance that every defender of a free press should be able to strike. It is not necessary to make Assange a hero in order to oppose his prosecution. But it is necessary to reject a project of successive presidential administrations that will—if seen through to its conclusion—set a precedent for prosecuting journalists and publishers.
As a writer who has authored and coauthored a number of books on media and democracy, an active supporter of journalism unions and media reform groups, and a keynoter at world congresses of the International Federation of Journalists (IFJ), I’ve thought a good deal about the threats faced by journalism in the 21st century. They are many. But few are so serious as the criminalization of the work of speaking truth to power.
The nub of the argument about him revolves around whether he is a journalist or publisher and entitled to the protection offered to those categories.
Some argue he does not follow the ethical rules — he does not edit, filter, fact-check, offer right of reply or redact to protect the innocent, as a journalist would be obliged to do. Is WikiLeaks, which simply slaps up as many original documents as it can no matter where it comes from, a publisher?
These categories are fungible in the age of digital media, when anyone can publish or purport to be a journalist on a global platform. Assange was investigated by the FBI, and the National Security Agency proposed WikiLeaks be designated a malicious foreign non-state actor.
But the Obama administration did not charge him, saying that if it went for him it would have to go for the media that published the material as well.
The Trump administration at first flirted with him over the Clinton emails, but then flip-flopped because Trump was keen to go after the media and weaken its constitutional protection.
His government asked for Assange to be sent for trial in the US. This week the British courts gave him permission to appeal against the extradition order.