If the consequences for the First Amendment weren’t so sobering, it would be a savage cosmic joke. First, Assange—convinced the Obama administration would snatch him up if given half a chance—sentences himself to indefinite confinement in the Ecuadorean embassy in London. Then, believing Hillary Rodham Clinton is a “sadistic sociopath,” he publishes those Russia-hacked Democratic National Committee e-mails at a pivotal moment in the campaign. Now the administration that Assange helped elect (headed by a genuinely sociopathic president who actually endorsed torture and rendition) takes the very step against him that Obama and his attorney general, Eric Holder, consistently refused.
What to make of this bizarre turn? The murky hints inadvertently revealed in a Justice Department filing leave much about the Assange indictment unclear. Do the charges relate to Robert Mueller’s Russian-hacking inquiry? Or to earlier leaks of classified documents? (My money says the latter: A sloppy breach of news about Assange would seem out of character for the fiercely disciplined and silent Mueller team.) Is it an unprecedented charging of a publisher under the Espionage Act, or some more conventional criminal complaint? Is there even an active indictment at all, or merely a determination by Trump’s Justice Department to pursue one? Regardless, what we know is enough: The notion of sealed charges against a publisher of leaked documents ought to have warning sirens screaming in every news organization, think tank, research service, university, and civil-liberties lobby.
Assange, of course, doesn’t make it easy. From the founding of WikiLeaks he has been a confounding figure. His historic innovation—an anonymous dropbox for otherwise-secret data—changed investigative reporting. The breadth of WikiLeaks’ disclosures, commingled with Assange’s own idiosyncratic motivations for what to publish and what to withhold, have tied lawyers and press-freedom advocates into knots for the better part of a decade. But now—with the charge against Assange coming amid the Trump administration’s broader assault on journalists—this once-academic debate takes on fierce urgency.
Is Assange a journalist at all? That’s where the argument usually begins, and too often ends. As NYU law professor Stephen Gillers points out in his penetrating and essential new book Journalism Under Fire: Protecting the Future of Investigative Reporting, the most far-reaching federal shield law proposed in recent years to protect reporters—the Free Flow of Information Act, introduced by Senators Chuck Schumer and Lindsey Graham in 2013 but never passed—explicitly wrote WikiLeaks out of the equation, denying protection to outfits whose “principal function” is publishing “primary source documents…without authorization.” The dividing line, says Gillers, is “editorial judgment”: What defines WikiLeaks as non-journalism is that it is an undiscriminating document dump. For years that same argument has allowed many traditional news organizations to keep their distance from WikiLeaks’ overtly activist publishing.
But that’s a dangerously crabbed view of the press. For one thing, Assange and WikiLeaks unquestionably exercise editorial judgment. It may be, at times, irresponsible, one-sided, or irredeemably wrongheaded; but it is judgment—editorial curation—nonetheless: What leaked material to release and when, how to organize it for readers, whether to protect the identities of vulnerable individuals named in leaks, and so on.
What’s more, major news organizations and investigative-reporting nonprofits worldwide long ago adopted key elements of the WikiLeaks approach, launching their secure dropboxes for leaked material and publishing wide-ranging primary-source databases and documents alongside traditional stories. Whatever the line between “news organization” and activist document dump, editorial judgment is a continuum rather than an absolute. A threat to one public-interest dropbox is a threat to all.
More profoundly, that crucial press-freedom clause in the First Amendment—“Congress shall make no law abridging freedom of the press”—doesn’t limit protection to self-defined reporters and editors: Indeed, in 1791, when the newly federated United States ratified the First Amendment, journalism as a distinct profession barely existed. To the framers’ generation, “the press” meant a contentious post-revolutionary ecosystem of publishers—printers and pamphleteers whose raucous invective had little in common with any of today’s journalistic canons, and whose arguments over transparency, political conspiracy, and corporate interest were as potent and one-sided as any Trump-era Twitter storm. And it was the publishing of government secrets that the Supreme Court upheld almost two centuries later in the Pentagon Papers case, celebrated last year in Steven Spielberg’s inspiring (and mainly accurate) film. Whether or not WikiLeaks counts as journalism, it surely counts as publishing.
But what if the DNC hack—or other WikiLeaks data—was an instrument of Russian dirty tricks? Assange, of course, has always claimed he does not know the identity of the DNC e-mail hacker—a claim somewhere on the spectrum from willfully naive to cynically mendacious, given the ample evidence of Russian direction and interest. But even if Assange knew the hacks were a gift from Moscow, for investigative journalists worldwide that only raises the stakes in this case. If press freedom and the First Amendment mean anything to muckrakers, it is the right to obtain public-interest information from impure, indeed hopelessly tainted, sources.
In a perverse way, Assange himself may regard the revelation of the Trump Justice Department charges as a gift: validating his view of himself as a martyr to transparency and anti-imperialism, and justifying the drama of his flight to the Ecuadorean embassy. At that level, it’s arguable that he and Trump deserve each other. But those are questions of character, which history will need to judge. Far more important is the present-tense reality of sealed criminal charges against a publisher of leaked secrets. At a minimum, given the stakes for investigative reporting and public-interest journalism, news organizations should be in court immediately demanding that the charges be unsealed so their legitimacy can be assessed. Assange, confined in his embassy redoubt, poses neither a flight risk nor an imminent security threat.
Over recent weeks, mainstream news organizations and civil libertarians correctly leapt to the defense of Jim Acosta’s White House press pass. Important as that fight is, in scale and consequence it is a rubbish fire. The still-secret Assange charges, if unchallenged, could burn down the scaffolding of American investigative reporting.