At the rally today, I spoke about my experience with freedom-of-information law and read parts of a letter from U.S. law professors to U.S. Attorney General Merrick Garland. The letter asks the U.S. Department of Justice to drop Espionage Act charges against Assange and abandon the request for his extradition from the UK.
The High Court in London heard arguments today that Assange should have a right to appeal to the courts over his extradition, which the British government has approved. Read more about today's proceeding from Jill Lawless at AP News. The case continues in the High Court tomorrow. Protestors crowded on the street outside the London courthouse today.
I'm as close to a freedom-of-information absolutist as you'll find.
I've said that about myself. I stole the notion and adapted the line from a personal hero, the renowned Professor Jane Kirtley, whom I was privileged to meet first in her legendary tenure at the helm of the Reporters Committee for Freedom of the Press (RCFP). Professor Kirtley utters the line as a First Amendment absolutist, and she's right: I've met no one so thoroughly committed to a free press, and able to persuade you she's right to boot.
Access to information, or frustration over the lack thereof, when I was a university journalist was a major force that drove me to law school. I was a strident 23-year-old law student, a legal intern at the Student Press Law Center (SPLC) and a willing convert to the cause, when I first met Kirtley in person.
It was the 1990s. Bill had cheated on Hillary, and Milli Vanilli's Grammy was revoked. I was well convinced that the world would be a better place if there were no secrets at all: if governments kept open books, and everyone walked around with their hearts on their sleeves.
At the joint offices of the RCFP and SPLC, I had access to a closet that held all of the publications on freedom of information. I devoured them. I was ready to build my Utopia.
I'm as close to a freedom-of-information absolutist as you'll find.
I still say the line. But I admit, sometimes now I say it with less conviction.
Yesterday on NewsHour, a cognition expert said that we experience an increase in compassion and empathy as we age. That's it, I thought. That's why the utterly fictional characters on This Is Us made me cry like it was my own family. That's why I'm no longer so confident in my absolutisms. It's biology, and I can't help it. I'm getting old and soft.
In 2006, I was still strong. I knew right from wrong. I was an absolutist terror. That was the year that WikiLeaks was founded. That was the year that Julian Assange came into my life.
Julian Assange and I are the same age, born just months apart and a world away, in 1971. By the time I learned of him, we were 25, and his biography made me feel like I'd been sitting on my hands watching the world go by. He had hacked NASA when he was a teen in Melbourne. He was charged with computer crimes by age 20.
But he wasn't a ne'er-do-well; he obeyed a nascent code of ethics for a new, technological age. He is credited with originating "hacktivism." He showed what government, especially the U.S. military, was up to behind virtual closed doors. He was out to make the world better by pulling back the curtain. Unapologetic, radical transparency.
When Assange co-founded WikiLeaks in 2006, freedom-of-information absolutism was the ethos. Anyone in the world with access to secrets could pour them anonymously into Wikileaks's servers in Iceland: a deliberate jurisdictional choice for information laundering. The drop-box technology was sleek. The morality was a-, not im-. Wikileaks would publish it all. The democratic potential of the internet would be realized. All the citizens of the globe would judge. Brilliant.
There were remarkable successes. Notable was the "collateral murder" revelation, that U.S. soldiers had killed 18 civilians in a Baghdad helicopter attack in 2007. WikiLeaks also revealed the toll of friendly fire deaths, many of which had been covered up. Conclude what one would about the military interventions in Afghanistan and Iraq, the people whose lives were on the line, as well as families and voters back home, deserved to see the good, the bad, and the ugly of war.
And it wasn't just about war. WikiLeaks had big banks in the crosshairs (2011, 2013). In 2016, a trove of records (e.g., Toronto Sun) revealed that Hillary Clinton campaign head John Podesta had called Bernie Sanders a "doofus" over his criticism of the Paris climate accord. Good to know.
But after the Iraq War apex, things had started to unravel. WikiLeaks knew a lot; maybe too much. Its revelations tested the as close to ... as part of my mantra. Absolutism's gloss started to tarnish.
Is there really social good in forecasting troop movements, when soldiers would be slaughtered as a result? Even Julian Assange saw it: Unmasked middle eastern informants cooperating with western forces, and the informants' families, faced brutal retaliation by militias and dictators. It was hard to work the math on absolute transparency to make the benefits always outweigh the costs.
So in 2010, WikiLeaks forged an alliance with The Guardian, and later other news outlets. With absolutism baked into the technology, WikiLeaks had no way to sift information to ensure, quite literally, that people would not be killed as a direct result of publication.
Journalists do know how to do that; that ethical balance, to minimize harm, is the very essence of journalistic professionalism. So WikiLeaks would turn some of its information over to journalists, who would screen for the rare but real need for confidentiality.
The collaboration was rocky, short-lived, and at best only partly successful. The missions of absolute transparency and journalistic judgment were not so easily reconciled. The story has been told many times, for example in Vanity Fair's 2011 "The Man Who Spilled the Secrets," and still is dissected in journalism schools.
Fortunes changed for Julian Assange. Negative words such as "anarchist" and "seditionist" took the place of positive words such as "crusader" and "activist." Allegations of rape, which Assange denies vehemently, surfaced in Sweden, which sought Assange's extradition from the UK. Conspiracy theorists, who are not always wrong, alleged that the Sweden allegations were a ruse to bring about Assange's extradition to the United States, which had indicted him, from a jurisdiction that would accede more readily than England would.
In London, Assange sought refuge in the Ecuadorean embassy, where he lived for nearly seven years. Things got weirder. Why wouldn't they?, with Assange trapped in a physical building and a legal limbo. In rare public appearances, Assange looked rough: less his former satiny-minimalist fashion, slick mane, and lustrous confidence; more fist-shaking-old-man-in-a-robe, scraggly-beard, "get off my lawn" vibe.
Eventually the Ecuadoreans grew weary of the house guest who wouldn't leave. They called the cops, literally. In 2019, Assange was arrested. He has been in London's high-security Belmarsh Prison since. The United States has asked the UK to extradite Assange to face espionage charges, and the UK has seemed pleased to offload a lightning rod.
Is the U.S. extradition request about prosecution or persecution? As media struggle to make sense of Julian Assange—"Visionary or Villain?"—all indications are that if he lands in the United States, sending him to the stockade, if not the gallows, will be a bipartisan cause. The shift in American political attitude these intervening years toward a troubling receptivity to authoritarianism has flipped the script on WikiLeaks in the public imagination.
Some 35 law professors, including me, on Wednesday signed a letter to Attorney General Merrick Garland asking that the U.S. Department of Justice (DOJ) end its efforts to have Julian Assange extradited and that DOJ drop Espionage Act charges against him. I'll paste the text of the letter below.
Yesterday, the Freedom of the Press Foundation hosted a forum, "Jailing Journalists: The Assange Case and the Threat to Press Freedom" [update:posted Feb. 20]. The forum was geared to reach people who might not understand what's at stake and might not like Julian Assange. One does not have to like Assange nor applaud the publication of state secrets to worry about the implications of an extradition and Espionage Act prosecution for the First Amendment and the American Fourth Estate.
Echoing just that worry, U.S. Rep. Jim McGovern (D-Mass.) led off the forum. He has led lawmakers, he said, in asking the Garland DOJ to drop the charges and abandon the extradition. McGovern represents the Massachusetts Second Congressional District, which is a good chunk of the center of the commonwealth, west of Boston.
The Freedom of the Press Foundation forum revealed just how dangerous the situation has become for journalists in America, and how endangered might be some fundamental precepts of First Amendment law. One journalist commented in the forum that he has been sued by government for a prior restraint on the dissemination of lawfully obtained public records. This is basic Pentagon Papers stuff. But would the present Supreme Court uphold the sacrosanct no-prior-restraint doctrine?, forum participants asked.
When I met Jane Kirtley 30 years ago, that would have been a silly question.
Assange will have been in prison in London for five years this April. Beginning Tuesday next week, on February 20 and 21, the High Court of Justice in London will hear his case on a potentially dispositive procedural question. Previously, the British government approved extradition to the United States, and a lower court judge decided that that determination could not be appealed. So the subject of the hearing next week is to determine whether Assange may appeal the administrative disposition to the courts.
Boston Area Assange Defense
plans a rally in support of Assange on February 20 (flyer above) at the Massachusetts State House. The
group has been an active local organization advocating against
prosecution of Assange. I publicized the organization's rally and forum last year. A demonstration is planned similarly at the UK Consulate in New York City on February 20 (flyer at left).
LAW PROFS' LETTER TO U.S. AG RE ASSANGE, ESPIONAGE ACT
February 14, 2024
The Honorable Merrick B. Garland Attorney General
Dear Attorney General Merrick Garland,
The undersigned law professors strongly urge the Department of Justice to end its efforts to extradite WikiLeaks founder Julian Assange to the United States and to drop the charges against him under the Espionage Act.[FN1]
Our personal views on Assange and WikiLeaks vary, and we are not writing to defend them in the court of public opinion. But when it comes to courts of law, we are united in our concern about the constitutional implications of prosecuting Assange. As explained below, we believe the Espionage Act charges against him pose an existential threat to the First Amendment.
"[A] free press cannot be made to rely solely upon the sufferance of government to supply it with information."[FN2] Accordingly, the Supreme Court has correctly and repeatedly held that journalists are entitled to publish true and newsworthy information even if their sources obtained or released the information unlawfully.[FN3] Journalists have relied on sources who broke the law to report some of the most important stories in American history.[FN4] An application of the Espionage Act that would prohibit them from doing so would not only deprive the public of important news reporting but would run far afoul of the First Amendment.[FN5]
That is why last November, editors and publishers of The New York Times, The Guardian, and other international news outlets wrote in an open letter about the Assange case that "[o]btaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalised,our public discourse and our democracies are made significantly weaker."[FN6] Additionally, top editors at The Washington Post, Wall Street Journal, USA Today, and more have unequivocally condemned the charges against Assange as a direct threat to their own journalists’ rights.[FN7]
The Obama/Biden DOJ recognized as much in declining to prosecute Assange, reportedly due to “the New York Times problem,” i.e., the lack of a legal basis to prosecute Assange that could not also be used to prosecute the nation’s most recognizable newspaper.[FN8] That was, unfortunately, less of a worry for the Trump DOJ, but should deeply concern your office.
The current indictment against Mr. Assange contains 17 counts of alleged Espionage Act violations, all based on obtaining, receiving, possessing and publishing national defense information.[FN9] The indictment accuses Assange of "recruit[ing] sources" and "soliciting" confidential documents merely by maintaining a website indicating that it accepts such materials.
Award-winning journalists everywhere also regularly "recruit" and speak with sources, use encrypted or anonymous communications channels, receive and accept confidential information, ask questions to sources about it, and publish it. That is not a crime—it’s investigative journalism. As long as they don’t participate in their source’s illegality, their conduct is entitled to the full protection of the First Amendment.[FN10]
The fallout from prosecuting Assange could extend beyond the Espionage Act and beyond national security journalism. It could enable prosecution of routine newsgathering under any number of ambiguous laws and untested legal theories.We’ve already seen prosecutors test the outer limits of some such theories in cases against journalists.[FN11]
The Justice Department under your watch has spoken about the importance of newsgathering and ensuring the First Amendment rights of reporters are protected, even when stories involve classified information. You have also strengthened the Justice Department's internal guidelines in cases involving reporters.[FN12] We applaud these efforts. But a prosecution of Assange under the Espionage Act would undermine all these policies and open the door to future Attorneys General bringing similar felony charges against journalists.
We respectfully urge you to uphold the First Amendment and drop all Espionage Act charges against Julian Assange.
Sincerely,
Jody David Armour, Roy P. Crocker Professor of Law, USC Gould School of Law
Michael Avery, Professor Emeritus, Suffolk Law School
Emily Berman, Royce R. Till Professor of Law, University of Houston Law Center
Mark S. Brodin, Professor, Boston College Law School
Leonard L. Cavise, Professor Emeritus, DePaul College of Law
Alan K. Chen, Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law
Carol L. Chomsky, Professor, University of Minnesota Law School
Marjorie Cohn, Professor of Law Emerita, Thomas Jefferson School of Law
Evelyn Douek, Assistant Professor of Law, Stanford Law School
Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law
Richard Falk, Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University
Martha A. Field, Langdell Professor, Harvard Law School
Sally Frank, Professor of Law, Drake University School of Law
Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights, Maurice A. Deane School of Law at Hofstra University
James Goodale, Adjunct Professor of Law, Fordham University School of Law
Robert W. Gordon, Professor of Law, Emeritus, Stanford Law School
Mark A. Graber, Regents Professor, University of Maryland Carey School of Law
Jonathan Hafetz, Professor of Law, Seton Hall Law School
Heidi Kitrosser, William W. Gurley Professor of Law, Northwestern – Pritzker School of Law
Genevieve Lakier, Professor of Law and Herbert & Marjorie Fried Teaching Scholar, The University of Chicago Law School
Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law, Emeritus, New York Law School
Gregg Leslie, Professor of Practice; Executive Director, First Amendment Clinic, ASU Sandra Day O’Connor College of Law
Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University School of Law
Carlin Meyer, Prof. Emerita, New York Law School
Anthony O’Rourke, Joseph W. Belluck & Laura L. Aswad Professor, University at Buffalo School of Law
Richard J. Peltz-Steele, Chancellor Professor, UMass Law School
Jonathan Peters, Chair of the Department of Journalism and Affiliate Professor of Law, University of Georgia
Aziz Rana, Incoming J. Donald Monan, S.J., University Professor of Law and Government, Boston College
Leslie Rose, Professor of Law Emerita, Golden Gate University School of Law
Brad R. Roth, Professor of Political Science and Law, Wayne State University
Laura Rovner, Professor of Law & Director, Civil Rights Clinic, University of Denver Sturm College of Law
Natsu Taylor Saito, Regents’ Professor Emerita, Georgia State University College of Law
G. Alex Sinha, Associate Professor of Law, Maurice A. Deane School of Law at Hofstra University
Mateo Taussig-Rubbo, Professor; Director of J.S.D. Program, University at Buffalo School of Law
Hannibal Travis, Professor of Law, Florida International University College of Law
Sonja R. West, Brumby Distinguished Professor in First Amendment Law, University of Georgia School of Law
Bryan H. Wildenthal, Professor of Law Emeritus, Thomas Jefferson School of Law
Ellen Yaroshefsky, Howard Lichtenstein Professor of Legal Ethics, Maurice A. Deane School of Law at Hofstra University
Signatories to this letter have signed in their individual capacities. Institutions are named for identification purposes only.
1. 18 U.S.C. §§ 792-798.
2. Smith v. Daily Mail Publ'g Co.,443 U.S. 97, 104 (1979).
3. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001); Florida Star v. B.J.F., 491 U.S. 524, 536 (1989); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 830 n.1, 832 (1978); Okla. Publ'g Co. v. Okla. Cnty. Dist. Ct., 430 U.S. 308 (1977).
4. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 913 (1971) (per curiam).
5. Jean v. Mass. State Police, 492 F.3d 24, 31 (1st Cir. 2007) (Bartnicki barred liability for knowingly receiving illegal recording under criminal wiretapping statute).
6. Charlie Savage, Major News Outlets Urge U.S. to Drop Its Charges Against Assange, N.Y. Times, Nov. 28, 2022.
7. Camille Fassett, Press Freedom Organizations and News Outlets Strongly Condemn New Charges Against Julian Assange, Freedom of the Press Foundation, May 24, 2019.
8. Hadas Gold, The DOJ's "New York Times" problem with Assange, Politico, Nov. 26, 2013.
9. 18 U.S.C. § 793; WikiLeaks Founder Charged in Superseding Indictment, Office of Public Affairs, U.S. Department of Justice, June 24, 2020.
10. Bartnicki, supra; Democratic Nat'l Comm. v. Russian Fed'n, 392 F. Supp. 3d 410, 436 (S.D.N.Y. 2019) ("Journalists are allowed to request documents that have been stolen and to publish those documents.").
11. Steven Lee Myers & Benjamin Mullin, Raid of Small Kansas Newspaper Raises Free Press Concerns, N.Y. Times, Aug. 13, 2023.
12. Charlie Savage, Garland Formally Bars Justice Dept. from Seizing Reporters' Records, N.Y. Times, Oct. 26, 2022.
The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.
I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.
I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.
We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.
These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.
Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.
There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.
The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.
Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.
Our editorial hearts sank. Had we protected the wrong person?
My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.
Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.
In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.
So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start.
I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.
Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.
In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.
McGoldrick wrote "that since Bloomberg most media organisations have, save in
exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such
identification is in the public interest."
