The Constitutional Rubicon of an Assange Prosecution

If you were tuning in and out of FBI Director James Comey's hearing before the House Intelligence Committee last Wednesday, you probably got an earful about Comey's public statements on Clinton's use of a private e-mail server, and you may have heard his staunch defense of Section 702 of FISA. But you might have missed the moment in which Comey and Senator Ben Sasse (R-NE) threatened to topple one of the longstanding pillars of journalistic freedom.

That moment came when Sasse asked Comey why Julian Assange has not been charged with a crime in connection with WikiLeaks' publication of classified information. (Sasse was at it again during yesterday's hearing on the Russia investigation, quizzing former DNI Clapper about Assange's actions.) After refusing to answer whether charges were pending, Comey effectively confirmed that they were: "He hasn't been apprehended because he's inside the Ecuadorian embassy in London." He also said that "WikiLeaks is an important focus of our attention."

No one has ever been prosecuted for publishing classified information obtained through a leak. Although some parts of the Espionage Act would appear, on their face, to allow prosecution in such cases, Comey acknowledged that "the Department of Justice's view has been [that] newsgathering and legitimate news reporting is not covered, is not going to be investigated or prosecuted as a criminal act." The Department to date has drawn a clear line between government officials who leak classified information, and media outlets that publish it. "Our focus is and should be on the leakers, not those [who] are obtaining it as part of legitimate newsgathering."

One might posit a distinction between those who passively receive classified information and those who actively solicit leaks, as WikiLeaks is reported to do. (Obama's Department of Justice flirted with that approach: in an affidavit seeking to obtain e-mails between Fox reporter James Rosen and a State Department source who was under investigation for leaking classified information, the Department accused Rosen of conspiring to violate the Espionage Act.) But Comey was not making that distinction. Senator Sasse asked him whether "American journalists [who] court and solicit [classified] information" have violated the law, and Comey responded that the Department of Justice would not prosecute such activity.

So why, in Comey's mind, is it permissible to bring charges against Assange? He explained his reasoning as follows: Publishing classified information "crosses a line when it moves from being about trying to educate a public and instead becomes just about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting." That, to Comey, describes WikiLeaks' behavior: "[I]n my view, a huge portion of WikiLeak's activities has nothing to do with legitimate newsgathering, informing the public, commenting on important controversies, but is simply about releasing classified information to damage the United States of America."

In other words, the line Comey seeks to draw is not between leaking classified information and publishing it, but between publishing it for "good" reasons and publishing it for "bad" ones. Those who do the former are "journalists," while those do the latter are not. And presumably, the Department of Justice gets to say which is which--at least when it comes to bringing a prosecution.

How will the government decide which outlets have an acceptable motivation? Comey didn't go into detail, but he pointed to one indicator: "American journalists . . . will almost always call us before they publish classified information and say, is there anything about this that's going to put lives in danger, that's going to jeopardize government people, military people or--or innocent civilians anywhere in the world. And then they work with us to try and accomplish their important First Amendment goals while safeguarding those interests."

In other words, media outlets that work in partnership with the U.S. government and are willing to self-censor based on official claims of national security are journalists. Those who conceive their role differently are not.

This exchange should send chills down the spine of every reporter and media representative. To be clear, I believe anyone who intends to publish classified information--assuming the information is not facially innocuous, as much classified information is--should consult with the executive branch in an effort to minimize harm. He or she should also exercise judgment and not publish potentially harmful information of negligible public interest. That is nothing more than morally responsible journalism. But acknowledging these professional obligations is a far cry from saying that the Department of Justice may prosecute someone who does not adhere to them.

To state the obvious, allowing the government to decide whether the intent behind a media disclosure is to "harm the United States" would throw open the door to viewpoint based discrimination. A reporter may well be opposed to certain U.S. government policies, or even to entire administrations, and have an intent to undermine them through her reporting. Regardless of whether that is model journalism, it is certainly protected under the First Amendment. Yet what a blogger considers to be opposition to a particular administration could easily be considered--or portrayed as--"intent to harm the United States" by an FBI agent.

That is not to say that journalists can print anything they want. The media's First Amendment rights are no greater than those of any ordinary private citizen. They can be sued for libel, for instance. And if they knowingly print information that presents a "clear and present danger" to public safety--the equivalent of incitement, or of yelling "fire" in a crowded theater--they could presumably be prosecuted (although no such prosecution has ever taken place). But the threshold for prosecution must be much, much higher than a nebulous claim of potential national security harm. Moreover, as Steve Vladeck noted in a previous post, the existence of such a danger would not depend on the motive of the publisher. Someone who hates the United States cannot be prosecuted for releasing documents if the New York Times could release the same documents with impunity.

Officials who leak classified information are in a different position. As a condition of their employment, government employees may be subject to certain restrictions on speech and political activity that would be unconstitutional if applied to private citizens. In general, an employee who signs a non-disclosure agreement in order to gain access to classified government information may be prosecuted for leaking that information. Drawing the line between those who leak classified information and those who publish it thus makes constitutional sense in a way that drawing the line between "good" publishers and "bad" publishers does not.

If anything, a line between leakers and publishers may been drawn too far in the direction of non-disclosure. Not all restrictions on government employees' speech are constitutionally permissible. For instance, a person cannot be prohibited from criticizing the government as a condition of government employment. Although the Obama administration prosecuted a record number of national security whistleblowers, there is a strong argument to be made that a government employee cannot constitutionally be required to forego disclosure of unlawful government conduct. Certainly, as a policy matter, such disclosures should not be prosecuted--or prosecutable.

Nonetheless, Comey seems determined to push the line in the other direction; and as a test case, he could not have done better than Julian Assange. Assange has enemies on all sides: conservatives hate him because he seems to revel in disclosing classified information, while liberals hate him for publishing Clinton campaign e-mails. At a minimum, one can certainly question whether he models responsible journalism. And in an era when no one's personal information seems safe from being hacked and published and our Facebook feeds are dotted with "fake news," it is tempting to impose criminal sanctions on those who publish information in a way society deems irresponsible.

But we should not kid ourselves about what that means. Allowing the FBI to determine who is allowed to publish leaked information based on the bureau's assessment of their patriotism would cross a constitutional Rubicon. If that giant step were to become a precedent, it could very well spell the end of independent, objective national security reporting.