ONCE UPON A TIME President Trump publicly professed his “love” of WikiLeaks. “It’s been amazing what’s coming out in WikiLeaks.” The platform had just released a trove of damning DNC emails that many still contend (or choose to believe) were leaked (despite evidence to the contrary) affirming the odious activities of Trump’s nemesis Hilary Clinton and other members of the Democratic Party. Post-election, however, the Trump administration now regards WikiLeaks’ founder Julian Assange as an enemy of the people; a threat to democracy that must be stopped.

The recent indictment of Julian Assange for violations of the Espionage Act is not merely a declaration of war targeting a powerful member of the free press; the bull’s eye is the First Amendment. And while freedom of the press is clearly in the government’s crosshairs, what puts WikiLeaks in a class of its own and makes it somewhat unique from mainstream media is the type of content it curates: “WikiLeaks accepts classified, censored, or otherwise restricted material of political, diplomatic or ethical significance.” In short, WikiLeaks seeks the type of stuff featured in John Grisham and Tom Clancy novels.

Yet it seems that Assange’s philosophy to publish even the most controversial of truths sans editing is what might just give the Trump administration adequate legal grounds to successfully prosecute him, the first member of the press the U.S. has charged as a de facto national threat.

The government further asserts that Assange created WikiLeaks to focus on such information prohibited for public disclosure by law “…because of the value of that information.” But isn’t the purpose of a free press to circulate information of great value to the public?

The Founding Fathers intended freedom of the press to be an arena for public discourse and the exchange of information. But current media has become about as divisive as bipartisan politics. Subjectivity has all but replaced objective news reporting. Mainstream media is less concerned about content and instead focuses on promoting viewpoint discrimination and fostering a narrative dictated by partisan politics and corporate interests.

Assange’s maverick style, exemplified by his reputation for soliciting and publishing information that primarily focuses on exposing the seedy government underworld, puts WikiLeaks in a class of its own relative to corporate media. And although such entities as the New York Times have too circulated documents originally published by WikiLeaks, it appears that it isn’t just the type of content that matters to the Trump DoJ; rather, it’s how that leaked material was acquired that places Assange in legal jeopardy. In the past, the government focused solely on prosecuting Whistleblowers for unlawfully providing classified documents to media sources. While the government would seek injunctions from the Courts to restrict publication of this information, up until the revised Assange indictment, it had refrained from pursuing criminal charges against traditional media.

A major obstacle for Assange, notwithstanding the applicability of laws governing freedom of the press, is the fact that criminal acts are not protected under the First Amendment. And strict interpretation of Title 18, United States Code, Section 793 et seq. makes it illegal to obtain and disclose National Defense Information without authorization.

But the motivation behind indicting Assange begs the question — how serious is President Trump when it comes to holding traditional media sources accountable for biased practices and a pattern of publishing disinformation that borders on defamatory? Is Assange really a threat to the American democracy or is he just another member of the media who needs to be silenced based on the type of information he publishes, not unlike Alex Jones being deplatformed by Facebook and Twitter? Selective censorship is now a pervasive practice within social media. By attempting to strip Julian Assange of his First Amendment rights, the government is all but following in the footsteps of private corporations such as Facebook and Twitter whose respective business models have created public forums where only certain information is allowed to be disseminated.

During his tenure as president, Donald Trump has unabashedly and habitually called-out publications such as the New York Times for its partisan-based reporting and overall business model of disseminating disinformation. He has consequently voiced a desire to change libel laws to “hold Fake News Media accountable.” By shifting focus solely upon Assange, however, Trump’s threats to hold mainstream media responsible for its often erroneous and misleading, if not libelous, content are thinly veiled; apparently nothing more than rhetorical hyperbole. Instead of pursuing news entities perpetrating “Fake News,” Trump is idly watching as his Justice Department is determined to destroy the life of a true investigative journalist whose history of publishing unedited content is of vital importance to our democracy.

The case at-issue arises out of Assange’s association with former Army Intelligence Officer Chelsea Manning relating to the leak of classified documents. Assange was originally charged in April 2019 under the Computer Fraud and Abuse Act for conspiring to hack into Department of Defense computers.

The superseding indictment includes 17 additional counts under the Espionage Act, most of which are primarily focused on Assange allegedly impetrating Manning to commit a crime.

The solicitation of a crime is illegal as is gaining unauthorized access to and circulating confidential government material. But were Assange’s actions so different from what is considered the norm in journalism?

Or is targeting WikiLeaks and Assange merely illustrative of Trump’s true ire towards the media? By making Assange appear to be a co-conspirator to Manning’s crimes, the administration has made him an example of how the government can use its power to prevent journalists from broadcasting newsworthy information to the public by inducing the fear of criminal prosecution.

Another alarming aspect is the Justice Department’s decision to essentially re-open the years’ long inquiry into WikiLeaks and Assange initiated by the Obama administration sans the discovery of any new relevant facts. Notwithstanding conclusory findings to forego prosecution in the past, the current administration has the gravitas to trespass on terrain its predecessor didn’t dare to travel. In the end, the Obama DoJ aborted its efforts to criminalize Assange having recognized that doing so would essentially challenge how the Supreme Court interprets freedom of the press under the Constitution.

Hence, is the decision to resurrect this investigation into Assange’s alleged crimes about protecting disclosure of national secrets? Or does Trump see this as an opportunity to ultimately turn national security reporting into a felonious act?

Notably, President Trump has enacted and engaged in his own personal battle against mainstream media since assuming office. He’s been quoted as saying “’Fake News’ is…in fact the enemy of the People” and has gone to great lengths to vocalize his disdain towards the corporate press, going so far as to revoke CNN reporter Jim Acosta’s White House press pass and publicly referring to Chuck Todd as a “sleepy son of a b — — .”

Unlike the “Fake News” pundits Trump regularly ridicules both verbally and in tweets (e.g. Jim Acosta, Chuck Todd, Wolf Blitzer), Assange has dedicated his career to protecting his sources and publicizing the nefarious, even illegal, goings-on within the government, similar to the unauthorized leaks known as the Pentagon Papers and Panama Papers.

In 2017, members of the current administration such as secretary of state Mike Pompeo had begun to publicly persecute WikiLeaks and Assange. Yet it seemed unfathomable that President Trump would turn on Assange, a man whose journalistic talents Trump had repeatedly praised and whom many would argue helped to get him elected in 2016, even if inadvertently. In hindsight, however, Pompeo uttered perhaps the most portent of warnings: “[w]e have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.”

“Against us”? What “us” was Pompeo referring to? Was he inferring that Assange’s use of the free press is a threat to the American people or to our government? It’s a well-established fact that the government’s interests are often mutually exclusive from those of the people.

Based on the language of the superseding indictment, the government’s manipulation of certain facts concerning Assange’s role in leaking the Manning documents is intended to convince the American public that Julian Assange acted as more than just a publisher by knowingly conspiring to aid Manning in furtherance of a crime.

According to the DoJ, Assange wasn’t simply an editor or publisher who had received stolen documents from Manning. In contrast to the Pentagon Papers case wherein the New York Times and Washington Post were publications that came into possession of stolen documents produced by a source, the government not only contends Assange purportedly encouraged Manning to steal additional classified material but has charged Assange with having distributed material relating to national security which he knew had been illegally acquired. These acts subject him to criminal prosecution — an aspect of First Amendment case law that has remained largely unexplored until now.

By asserting that Assange should be perceived as a criminal and not as a member of the press, the government contends that protection under the First Amendment is inapplicable. However, such manipulation of law is trickery. The free press does not merely apply to some news publications, nor is it solely applicable to specific reporters or editors and not others. Freedom of the press is inclusive. Therefore, the First Amendment is intended to protect any individual who initiates “free discussion of governmental affairs” with the public via the press. (See Mills v. Alabama (1966)).

The Supreme Court interprets the meaning of free press literally. Accordingly, the press is granted with broad powers based on the text of the First Amendment. UCLA professor and First Amendment scholar Eugene Volokh points out that based on the text of the Constitution and Supreme Court decisions from 1930's-on, freedom of the press is meant to apply to anyone who uses the printed word in any format to communicate with the public.

In New York Times Co. v. United States (1971), Justice Hugo Black addressed the purpose of a free press as follows:

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors…[o]nly a free and unrestrained press can effectively expose deception in government.”

In the foregoing case, the U.S. government sought to prohibit the Times from publishing excerpts from the classified Secretary of Defense report entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” Defense researcher Daniel Ellsberg had smuggled the top-secret report from a safe at RAND and subsequently gave the Times its contents.

Although the DoJ was successful in obtaining a temporary restraining order, Ellsberg then gave the material to the Washington Post, followed by a copy to The Boston Globe. All told, in excess of a dozen newspapers had printed portions of the Report. In a 6–3 decision, the Supreme Court denied the government’s request to exercise prior restraint and found that the government could not enjoin the Times (or the Post) from publication.

But a focal aspect of the Times case is that the Court merely stayed the government’s injunctions and allowed this information to be legally published under the First Amendment. It did not, however, address the possibility of criminally prosecuting publishers for doing so.

In Assange’s situation, irregardless of whether he did in fact encourage Manning, Assange was in unauthorized possession of leaked information pertaining to national security as defined by 18 U.S.C. Section 793(e) and published the same. (See Counts 15–17 of superseding indictment.)

Clearly the Assange indictments were drafted to circumvent the role of the First Amendment altogether. As a preface to announcing the charges against Assange, Assistant Attorney General John Demers declared “Julian Assange is no journalist” as if to suggest that “real” journalists are part of an elite group of persons who are required by law to possess certain academic and/or professional training or credentials.

Without question, WikiLeaks’ circulates information that is undeniably essential to “the free discussion of governmental affairs” as defined in Mills and is of great importance to the public. Therefore, based on legal precedent, isn’t this criteria satisfactory to demonstrate WikiLeaks is prima facie journalism? Or is the means in which this information was acquired more important to consider than the value of the content of the information itself?

Assange’s actions, such as trying to persuade and encourage Manning to procure more documents, are normal in journalism. A journalist’s modus operandi is to persuade sources to come forward with information and, in the case of a Whistleblower like Manning who possessed direct access to confidential government information, collect as much documentation as possible. In fact, it would be unusual for a journalist not to employ such motivational tactics with a source, or want to protect a source’s identity.

But Assange’s methods when read in the context of statutory law 18 U.S.C. Section 793 et seq. suggest his intent “…to facilitate Manning’s acquisition and transmission of classified information related to the national defense of the United States…” was to knowingly engage in a criminal act.

Lest we forget, the Obama Department of Justice also sought to criminalize WikiLeaks and Assange. Recall in 2011, the DoJ attempted to prosecute Assange for allegedly offering to help Manning to crack a password in order to help her conceal her identity. In 2013, after an exhaustive investigation which included convening a grand jury, the Obama administration failed to discover compelling evidence that would prove Assange had acted outside of the scope of a typical journalist.

Furthermore, according to the Washington Post, the DoJ concluded that indicting Assange would also require the government to act similarly towards the Times and any other news outlet and journalist who had published the illegal documents.

In short, the outcome of prosecuting Assange would mean that any unauthorized publication of content concerning matters of national security would be considered a criminal act, regardless of the source.

Like déjà vu, the facts that were relied upon in the Obama DoJ’s inquiry in 2011 are the same pertinent facts of which the current indictments are based. But the previous administration had the sense to recognize the potential ramifications on the free press collectively if the government had pursued criminal charges against Assange.

Those critics who contend Assange is neither a journalist nor editor should consider the repercussions in the event he is convicted. Attempting to distinguish a “real” journalist versus an interlocutor would mean attempting to alter how the authors of the Constitution viewed a free press. Such a myopic point-of-view is nonsensical and incompatible with well-established legal precedent. If the government is permitted to essentially redefine how “journalism” is applied and make such arbitrary judgments as to who is and who is not a member of the press, then the future for journalism is dire.

Moreover, shouldn’t those traditional media sites that eagerly collaborated with WikiLeaks in 2010 to publish the very same documents that the instant indictments are premised on; namely, the Guardian, the Times, and others, be prosecuted too? Will they be held to similar legal scrutiny as WikiLeaks and face criminal liability? Like Assange, these publications also had unauthorized possession of and disseminated documents containing national security information premised on the belief that they were protected under First Amendment laws.

Those who criticize WikiLeaks’ stratagem need to consider corporate media’s history of cultivating classified documents and protecting sources. Remember Bob Woodward’s clandestine meetings in parking garages with secret informant “Deep Throat” (Mark Felt) who provided key details that ultimately led to the Watergate scandal? Woodward clearly did not have the appropriate security clearance to be in possession of this confidential information provided by a source nor did he have the authority to disclose this information to the public.

Mainstream media uses the Internet to appeal to potential Whistleblower sources. For example, the Times encourages sources to submit sensitive documents via its website and utilizes Tor anonymity software for its encrypted submission system, SecureDrop. Advertising a system designed to protect source anonymity is a blatant solicitation for classified information — the type WikiLeaks seeks.

Remember when the Times and the Washington Post each published top secret documents leaked by Whistleblower Edward Snowden? They weren’t condemned by their peers or the public for opting to release defense and intelligence documents that Snowden had acquired while working for Booz Allen Hamilton. On the contrary, both were praised for respectively helping to expose abuses of U.S. intelligence practices, which ultimately led to increased public awareness of the need for greater NSA transparency.

Post-Assange, will the DoJ charge these organizations under Title 18 for unauthorized possession and publication of documents illegally leaked by an ex-NSA contractor?

Without question, mainstream organizations are struggling to stay relevant and financially solvent in an age when they are forced to compete with alternative and social media sites as news delivery shifts from print to digital format. In order to remain viable, the Times, for one, has had to compete with WikiLeaks’ model. So for these entities to suddenly argue that Assange shouldn’t be classified as a member of the free press is categorically absurd.

In a time when mainstream news is premised on circulating (false) narratives based primarily on political agendas, Trump should laud Assange and WikiLeaks for publishing unfettered fact compared to corporate media’s sensationalism. Instead, he’s allowing his administration to punish Assange for being an advocate for accountability.

Back when Donald Trump openly celebrated WikiLeaks’ release of the DNC emails, he certainly didn’t appear to question WikiLeaks’ methodology, much less rebuke Assange for potentially having engaged in a cybercrime in order to obtain them. Instead, Trump focused on the content, and basked in the controversy this document arsenal created for Hillary Clinton and her Democratic comrades.

Assange’s arrest has without question caused a sort of chilling effect on journalism. And rightfully so. The current administration has dramatically raised the stakes for investigative journalism, making it such that any member of the press who publishes material relating to national security is in turn gambling with his/her personal freedom.

The Trump administration’s villainization of Julian Assange is proof that there’s nothing free about our press.