Publishing government secrets shouldn’t be illegal

Caitlin Vogus Headshot

Deputy Director of Advocacy

A white envelope stamped "TOP SECRET"

The indictment against Julian Assange seeks to make the publication of government secrets a crime. Top Secret by Michelangelo Carrieri is licensed under CC BY-ND 2.0.

Today, the High Court of Justice in London began considering a case that could shape the future of press freedom in America: WikiLeaks founder Julian Assange’s likely final appeal of his extradition to the United States to face charges under the Espionage Act for publishing secret government documents.

If Assange is tried and convicted in the U.S. under the Espionage Act, the First Amendment rights the press has long enjoyed to “bare the secrets of government and inform the people” may be stripped away.

The U.S. Department of Justice would have you believe otherwise. “Julian Assange is no journalist,” it declared when it first indicted him on 17 counts of violating the Espionage Act. The indictment itself is chock-full of allegations that are irrelevant to the actual charges against him, but are intended to paint Assange as a “hacker,” not a reporter.

Don’t be fooled. It doesn’t matter if Assange is a journalist. The Assange prosecution places journalists squarely in the DOJ’s crosshairs by seeking to criminalize common ways that journalists cultivate and work with sources. But perhaps even worse, it attempts to criminalize journalism itself, by asserting for the first time that a publisher can be criminally punished just for publishing classified information, no matter how it was obtained.

If Assange is convicted, it will drastically alter the risk assessment journalists and their lawyers undertake before engaging in what was previously routine journalism — especially when their reporting might embarrass or anger government officials. The result will be less reporting on some of the most important issues of our time.

Pure publication theory is pure peril for journalists

Three counts in the Assange indictment seek to punish him under the Espionage Act for “pure publication,” i.e., simply for publishing classified documents. Convicting Assange for publishing alone would mean that journalists — who have long published classified documents and continue to do so all the timecould be convicted for the same crime.

About half the presidential administrations since Nixon have threatened to prosecute journalists. An Assange conviction would make that threat much more real. We’ve already seen how aggressive investigations of whistleblowers can chill reporting. The specter of criminal investigations and prosecutions of journalists may mean news reports based on classified material become few and far between, even if actual prosecutions remain rare.

That may be exactly what the DOJ wants. But it will leave the American public, and our democracy, worse off. Imagine if we never learned about the torture at Abu Ghraib, vast warrantless wiretapping of Americans, or former President Donald Trump’s shocking phone calls with foreign leaders, all because journalists were afraid to go to jail for publishing.

Even publishing documents received anonymously and unsolicited through the mail or online could be criminal. Journalists who used the Discord Leaks — a trove of classified documents posted on social media — to report about U.S. intelligence agencies’ pessimism about the war in Ukraine, North Korea’s nuclear weapon program, or Taiwan’s vulnerability to Chinese attack could be found guilty of the crime of publishing, without ever interacting with a source.

The successful application of the pure publication theory would also increase the government’s power to skew public narratives in its favor. The government already influences press coverage using plants (official disclosure of government secrets) or “pleaks” (quasi-authorized leaks), while harshly punishing unofficial whistleblowers who expose less-favorable information.

Imagine, for example, how the press would have reported on the Obama administration’s classified drone program if it knew it could be punished for publishing classified information. It almost certainly would have still published quotes from government officials crowing about the program’s successes. But would journalists have dared to publish exposés revealing the shockingly high numbers of civilian deaths, knowing that they risked jail time just as much as the whistleblower who leaked the documents?

Criminalizing reporter-source relationships

The DOJ has also charged Assange with violating the Espionage Act based on his interactions with his sources, among them Chelsea Manning. Assange is accused of “conspiring” with sources to obtain classified information by publicly stating that WikiLeaks sought particular information, of obtaining and receiving classified information from one source, Manning, and of “aiding and abetting” Manning by encouraging her to leak documents.

As with the pure publication charges, these charges are based on acts that journalists engage in routinely. Prominent news organizations offer tip lines that allow sources to leak to them anonymously or confidentially. Journalists ask for leaks and work with sources. They encourage sources to leak, and they try to protect them from being discovered. All of that could be criminalized if Assange is convicted for his interactions with sources under the Espionage Act.

It’s no surprise that Trump — who publicly called for journalists to be jailed — would want to criminalize both pure publication and reporter-source relationships. But if the Biden administration really believes that journalism is not a crime, its pursuit of this case is inexplicable.

News media outlets, scholars, and press freedom groups have repeatedly condemned the Espionage Act charges against Assange as a threat to journalists. Even the Obama administration, despite its disdain for WikiLeaks, recognized it could not prosecute Assange without endangering journalists.

Perhaps the Biden administration hopes that a U.K. court will solve the problem by refusing to extradite Assange. But we shouldn’t leave it up to a foreign court to protect the First Amendment. The DOJ should put an end to the press freedom quagmire by dropping the case against Assange.

Donate to support press freedom

Your support is more important than ever.

Read more about Press Freedom

American journalist now held in Russia six months

The State Department should designate Alsu Kurmasheva as wrongfully detained. Russia must immediately release her

House bill on Section 702 would enlarge government’s power to spy on journalists

It’s not too late for the Senate to refuse to reauthorize Section 702 without meaningful reforms to protect Americans’ privacy

Accountability is past due for Kansas newsroom raid

Evidence of unlawful retaliation continued to mount after raid left the headlines