There’s a sharp piece in today’s Washington Post from Jack Goldsmith, currently with Harvard Law but formerly an assistant attorney general in the Bush administration, about “Why the U.S. Shouldn’t Try Julian Assange.” Goldsmith points to the sticky First Amendment / press freedom issues at stake should the U.S. try to go after Assange and WikiLeaks:
A conviction would also cause collateral damage to American media freedoms. It is difficult to distinguish Assange or WikiLeaks from The Washington Post. National security reporters for The Post solicit and receive classified information regularly. And The Post regularly publishes it. The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information. News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak. Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information.
One reason journalists have never been prosecuted for soliciting and publishing classified information is that the First Amendment, to an uncertain degree never settled by courts, protects these activities. Convicting Assange would require courts to resolve this uncertainty in a way that narrows First Amendment protections. It would imply that the First Amendment does not prevent prosecution of American journalists who seek and publish classified information. At the very least it would render the First Amendment a less certain shield. This would – in contrast to WikiLeaks copycats outside our borders – chill the American press in its national security reporting.
Quite right, and it’s a point bolstered by another editorial that also appeared in the Post a few weeks ago by Adam Penenberg of New York University, in which he made the case for treating Assange as a journalist. Penenberg asks: “What constitutes “legitimate newsgathering activities”? How do you differentiate between what WikiLeaks does and what the New York Times does?”
Importantly, Goldsmith correctly notes that, practically speaking, a prosecution of Assange probably wouldn’t do much to put the genie back in the bottle. “A successful prosecution, on the other hand, would not achieve the desired deterrent effect,” Goldsmith says. “WikiLeaks copycats are quickly proliferating around the globe, beyond the U.S. government’s effective reach. A conviction would make a martyr of Assange, embolden copycat efforts and illustrate the limits of American law to stop them.” Again, quite right. It’s a point I’ve stressed in my recent essays about the challenges faced by information control regimes.
Anyway, Goldsmith’s entire piece here.