Use of Espionage Act vs. Trump isn’t dubious. Here’s a case that is.

members of reporters without borders advocate for Julian assange’s release from prison in london in 2021.

(Update June 25, 2024: The Julian Assange case ends with his plea of guilty to one felony count of obtaining and publishing classified national security information. His sentence is the equivalent of time already served while fighting extradition to the U.S. This avoids a court ruling adverse to press freedom. But for the first time the U.S. government has used the Espionage Act to punish a publisher.)

Donald Trump on Saturday mocked the Espionage Act of 1917, the law by which he faces criminal charges for absconding with classified government documents. “They want to use something called the Espionage Act,” he said at a convention in Georgia. “Doesn’t that sound terrible?”

He should be familiar with it, actually. His administration used it as the basis for a terrible criminal case against the founder of the anti-secrecy website WikiLeaks.

The act, passed to try to stifle dissent about U.S. involvement in World War I, has generated much debate over the years about what it should be used for. Infringement of the First Amendment led to revisions that stripped away the law’s original purpose. Since then it has been used to punish spies working for other countries (see, for example, Robert Hanssen, who died in prison last week) and it clearly applies to mishandling of records such as the Trump case.

It also has been used more controversially to punish government employees who leak sensitive information to the press, including revelations that benefitted the public interest. The case pending against WikiLeaks founder Julian Assange sends the Espionage Act of 1917 into a whole new area: Targeting the journalists who publish leaked information.

Before I stand up for his actions in this case, let’s be clear that Julian Assange is a bad guy.

Facing investigation in connection with a sexual assault in Sweden in 2012, Assange took asylum in the London embassy of Ecuador, which expelled him in 2019 for being a belligerent guest. Now imprisoned in London, Assange is fighting an extradition request from the United States that was granted by the British government. The most recent British court ruling, on Friday, went against him.

In 2019, the U.S. government charged Assange with 18 crimes related to WikiLeaks’ publication (almost 10 years prior) of leaked, classified government documents about the wars in Iraq and Afghanistan. This action ignores the constitutional right to publish secret information in the public interest, even if the original source of the information broke the law in providing it.

The Justice Department argued that it wasn’t infringing on First Amendment rights because Assange engaged in conduct that was not protected. It’s true that journalists can’t commit or abet a crime in the course of gathering information, and if the Justice Department had stuck to its lone original charge – that Assange violated the Computer Fraud and Abuse Act by helping Chelsea Manning try to crack a password to a secure government computer – the defenders of press freedom might not have been so outraged. Because hacking is not a protected journalistic activity.

julian assange in 2013

But the Justice Department didn’t stick with just that. It later announced 18 new counts, including 17 brought under the Espionage Act of 1917. The Obama administration used the Espionage Act aggressively against leakers within the government. With the Assange case, the Trump administration became the first to use that law as the basis for action against a publisher (and it did so despite some dissenters within the Justice Department who were concerned about First Amendment rights). Some major news organizations around the world have urged the Biden administration to drop the case, but so far it isn’t doing so.

Many press freedom advocates see little difference between what WikiLeaks did and what national security reporters do regularly. “Every national security journalist who reports on classified information now faces possible Espionage Act charges,” journalist Laura Poitras, who published classified documents provided by Edward Snowden, wrote in The New York Times in 2020.

The federal government claims Assange is a criminal because he was not a passive recipient of leaked information, but instead engaged in active solicitation. Does that view therefore criminalize reporters who engage in the very normal practice of telling potential leakers why there’s public service value in revealing certain government acts? Does that view criminalize the many news organizations that provide encrypted methods for confidential sources to deliver sensitive information? These are legitimate worries that come from the Assange case.

But this case isn’t merely about the reporting process. The charges also arise from some of the content that WikiLeaks published. Poitras cites worthy revelations about war crimes and civilian deaths. But the Justice Department points to disclosure of identities of Afghans and Iraqis who aided the United States, thus placing them in danger of retribution, as well as to disclosures about U.S. war tactics.

Ethical and responsible journalists won’t publish such details. This is also more evidence that Assange doesn’t really qualify for the label of journalist. But a lack of professional ethics or standards doesn’t nullify a constitutional protection. Nor does being a bad guy.