When the Trump administration announced its decision last month to indict Wikileaks founder Julian Assange for violating the Espionage Act, it argued that it was not targeting journalists for their reporting, since it did not consider Assange a journalist. That did not stop journalists and other commentators from warning of the indictment’s grave consequences for press freedom. In an interview with WPR, Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, discusses the complicated legal questions at issue in the Assange case, which he says have never been decided in U.S. courts. The following transcript has been lightly edited for length and clarity.
WPR: What is the overall significance, for the First Amendment and for press freedom, of the Trump administration’s decision to charge Julian Assange under the Espionage Act?
Stone: Well, if you step back, the basic question is: Can a member of the press act in a way that would otherwise be unlawful, in order to get information that is potentially of value to the public? And in this context, it would mean soliciting a crime—that is, encouraging a government employee to undertake an illegal leak of information. As a general rule, members of the press do not, under existing law, have a right to violate laws that are not directed against the press or against speech. So, for example, a member of the press who speeds in order to get to a presidential press conference in time does not have a defense against the crime of speeding. Or a member of the press who bribes a government official in order to obtain revealing information is not exempt from bribery laws.
When this issue arose under the Obama administration, as I recall, the particular issue had to do with encouraging a leak. And [then-Attorney General] Eric Holder concluded that he wasn’t going to prosecute that, even though he might’ve had the legal authority to do so. So, the interesting question that’s raised here is whether a member of the press is entitled to violate laws that are not themselves directed at a member of the press. That’s assuming Assange is a member of the press, which itself is one of the puzzling questions.
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