Could this presidential administration bring charges against the New York Times for publishing information about Donald Trump's tax returns? Could its Department of Justice claim health privacy laws are being violated when news outlets report on the massive cluster of coronavirus infections currently spreading in the White House?
These arguments offend First Amendment sensibilities, and would have seemed outlandish just a few years ago. But given the administration's continuing prosecution of Julian Assange, whose month of extradition hearings wrapped up this week in London, the possibility has to be taken more seriously.
Despite their importance, these hearings have seemed unable to break through the domestic news environment in the United States where the charges originated. Some of that reflects an odd lack of coverage: even several major newspapers that issued alarmed statements upon his indictment filed only occasionally from the courtroom this month. And some blame surely falls on the hectic news environment in the run-up to the presidential election — not to mention the preternatural news cycle dominance of this president himself.
But nearly every major story pushing Assange's trial off the front page underscores the importance of principles at stake in his case. These stories by and large rely on journalists obtaining and publishing otherwise secret material, which is precisely the issue at the heart of the extradition proceedings, and which Trump and William Barr's Department of Justice contend is illegal.
The behavior described in the Espionage Act and Computer Fraud and Abuse Act charges against Assange reflect a range of activities that absolutely includes common journalistic endeavors. And beyond the “disclosure” charges, the indictment includes counts of “obtaining and receiving” protected information and “conspiring” with a source by encouraging them to hand over more information. That’s important, because while critics have raised complaints about Assange’s editorial judgment around publishing certain material, even perfect editorial judgment would not insulate a mainstream publication from those counts.
That’s part of the reason the Obama administration, in office during the events covered in the Assange indictment, considered and rejected charges at the time. At the heart of this consideration was what it dubbed “the New York Times problem”: per former Justice spokesman Matthew Miller, “there is no way to prosecute him for publishing information without the same theory being applied to journalists.”
This is obviously true when applied to national security journalists like Bob Woodward, who convince sources to hand over classified documents all the time. But it also does not require much imagination to extend the same principle to the stories dominating news coverage for the past two weeks.
Take, for example, the massive New York Times expose into President Trump's long-hidden tax returns. Although it would shatter yet another set of norms and bend Constitutional principle to its breaking point, this Department of Justice could cite federal law to claim the Times's publication is illegal.
The New York Times in particular could of course argue any such claims, since the First Amendment should trump the plain language of the statute. But any court battle would be expensive and risky. Even the Times is not guaranteed a win, and smaller outlets could reasonably decide a similar publication isn't worth the threat.
Similarly, reporting on the coronavirus infections of the President and people in his immediate orbit has been dogged by arguments — often dubious, and sometimes evidently in bad faith — that certain publications could violate HIPAA, the primary American health privacy statute. Trump’s doctor is claiming he can’t talk about the president’s COVID tests because of the law.
What if, for example, a New York Times reporter persuaded one of Trump’s medical team to tell them about his private COVID tests? The doctor would be violating the health privacy law, and the Times — it could easily be argued, using the theory of the Assange case — “conspired” with medical professionals to do so by encouraging him or her.
Again, the First Amendment principles against such claims are normally strong, but those arguments could be turned on their heads in the wake of an Assange conviction.
This is an alarm that has been ringing for the better part of a decade: If U.S. prosecutors can make these charges stick, nothing but shattered norms and bent principles prevent them from going after mainstream publishers as well. That conversation has been focused particularly on the Espionage Act charges. It's unfortunately all too plausible that this Department of Justice, or another similarly inclined against press freedom, would expand the statutes it is willing to use towards a censorial end.