NEW YORK -- Does the indictment of WikiLeaks founder Julian Assange under the US Espionage Act for publishing classified military and diplomatic documents threaten the constitutional right to freedom of the press?
Many legal experts fear it does, and say journalists could find themselves facing similar charges if they try to protect their sources.
“What he is accused of doing is exactly what professional journalists do every day — seeking, receiving and publishing important information about our government,” said Sonja West, a law professor at the University of Georgia.
“When it comes to the Espionage Act, this is a line that press advocates have been closely watching, and the Trump administration just crossed it.”
Sixteen of the 17 new charges against the 47-year-old Australian unveiled Thursday by the US Justice Department are related to obtaining and disseminating classified information.
The military documents and diplomatic cables were obtained by former Army intelligence analyst Chelsea Manning, who was sentenced in 2013 under the Espionage Act to 35 years in prison over the leaks.
In a bid to head off a stampede of criticism from press freedom groups, Assistant Attorney General John Demers said: “Julian Assange is no journalist.”
Ben Rhodes, a former senior official in the administration of Barack Obama, agrees.
“This is not journalism,” Rhodes said on his “Pod Save the World” podcast.
“Julian Assange has essentially been operating at least in recent years as an extension of Russian intelligence. His motivation behind what he’s doing is not transparency,” he said. “It’s on behalf of a very specific agenda.”
But others note that the events date back to 2010, long before the 2016 presidential election campaign, when WikiLeaks published documents about the Democratic Party obtained by Russian intelligence.
“For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information,” said Ben Wizner of the American Civil Liberties Union.
“This is an extraordinary escalation of the Trump administration’s attacks on journalism, and a direct assault on the First Amendment.”
Bound for the Supreme Court?
For Floyd Abrams, a prominent constitutional law specialist, “the question, I think, should not be whether Assange is a journalist but whether the First Amendment protects his conduct.”
Indeed, the amendment is seen as the bedrock worldwide for the defense of media rights.
“If Julian Assange is convicted... the concern is that there will be no meaningful principle to distinguish the rejection of the First Amendment argument for him from the application of the First Amendment defense to the mainstream media,” explains Mary-Rose Papandrea, a professor at the University of North Carolina School of Law.
“There actually isn’t a very good way of defining who counts as a journalist these days,” she said.
“There never has been, but particularly with the internet, anybody can be a journalist, anybody can be a third party that receives information from a source.”
The indictment also raises questions about the precise scope of the Espionage Act, which was passed in 1917 -- shortly after the United States entered World War I -- to prevent leaks of confidential information during wartime.
“What makes the indictment against Assange so concerning is that it exposes just how vulnerable journalists are under the Espionage Act,” West said, saying the law is written “very broadly.”
The Obama administration targeted leaks from within the government like no White House before it, but did not indict any journalists under the law, and also elected not to file such charges against Assange.
Before Obama took office, a handful of people, including at least one journalist, were charged with violating the Espionage Act for obtaining and publishing classified information, but each time, the cases were dropped.
An editor has never been charged. Some say Assange would fall under that title at WikiLeaks. Papandrea says she believes the Assange case will end up in the US Supreme Court, which has yet to consider the constitutionality of the law.
“If the US can prosecute a foreign publisher for violating our secrecy laws, there’s nothing preventing China, or Russia, from doing the same,” the ACLU’s Wizner warned.