Tuesday, May 28, 2019

Whether Assange (or Anyone Else) is a "Journalist" is an Unimportant and Perhaps Even Meaningless Question

by Michael C. Dorf

At least some of the counts of the superseding indictment filed last week against Julian Assange appear to apply to activities that conventional reporters routinely undertake. Does that mean the indictment violates the First Amendment? Not necessarily. As I'll explain briefly below, it's not even clear that a responsible national security reporter for a bona fide news organization would be protected by the First Amendment for doing what Assange stands accused of doing, even though such reporters do so regularly.

I'll then pivot to problematizing an issue that has consumed many non-lawyers (and even some lawyers who don't know better): whether Assange is a journalist. As I'll explain, so far as the First Amendment as construed by the SCOTUS is concerned, there's no such thing as a journalist.

First, let's talk about the two leading cases. In The Pentagon Papers Case, the Court ruled that a prior restraint against publication of classified information could not be issued unless the government met a "heavy burden" of justification. In Bartnicki v. Vopper, the Court held that the dissemination of illegally obtained information cannot be the basis for a criminal conviction, at least where the disseminator did not participate in the unlawful obtaining of the information.

Some of the charges against Assange do not necessarily implicate Bartnicki, as he is accused of having participated in Chelsea Manning's unlawful disclosures. But much of what Assange stands accused of doing amounts to "participation" in only the weakest sense: making clear that he would be the outlet for the purloined information. Reading an exception to Bartnicki for any circumstance in which a reporter encouraged a source to leak would greatly undercut the protection Bartnicki was thought to provide.

Even assuming that a mere offer to publish is not a sufficient inducement to trigger the Bartnicki exception for information purloined through a journalist's participation in the breach, the government can argue that Bartnicki doesn't apply to material that is classified on grounds of national security. As Prof. Eugene Volokh discussed last week, there is a bit of a gap between Pentagon Papers and Bartnicki. The former protects the publication of even national security secrets absent a particularized showing of imminent harm, but only against prior restraints and not necessarily against after-the-fact prosecution; the latter protects against after-the-fact prosecution but not necessarily in cases involving national security secrets.

Thus, it is open to the government to argue that even if a reporter does not participate in illegally obtaining the classified national security information, she or he can be prosecuted after the fact for disseminating it. Such a rule that threads the needle between Pentagon Papers and Bartnicki would allow for prosecution of the journalists who worked at the NY Times and Washington Post that published the Pentagon Papers and would effectively criminalize first-rate national security reporting by the likes of Seymour Hersh, Lawrence Wright, and others.

But wait, you're thinking. How can I compare Assange to Hersh and Wright? The short answer is it doesn't matter. First Amendment law is pervasively unconcerned with whether someone is a journalist. Under Branzburg v. Hayes, there is no right of journalists to shield their sources, because "the publisher of a newspaper has no special immunity from the application of general laws." Under Zurcher v. Stanford Daily, the Fourth Amendment does not impose any special burden on the police when searching the offices of a newspaper as opposed to any other establishment. Etc. As Prof. Sidney Tarrow and I explained in a 2017 article, the Court's cases construe "freedom of the press" to protect journalistic activities but not journalists or the institutional press as such.

Although the key cases denying any special protection to the institutional press date from the middle of the 20th century, the doctrine might be considered sounder today than it was when it originated. After all, the decentralization and democratization of journalism via social media make it increasingly difficult to distinguish between journalists and concerned citizens. Nor is it clear that it would be sensible to give a special privilege to full-time journalists. The government either has or lacks an interest in suppressing a video recording of, say, the use of deadly force by the police. Why should the NY Times have a stronger right to post such a video on its website than does the person who shot it have to post it on YouTube or Facebook?

To be sure, many states afford some additional protection to the institutional press and professional journalists by allowing them to shield sources. Such provisions typically allow journalists to avoid contempt prosecutions for refusing to divulge sources in circumstances in which others would be compelled to testify. State laws may even be extended to provide journalists with protection from police searches (as critics argue should be the case in a recent high-profile San Francisco search of a journalist's home).

But extra protection for journalists under state law is not relevant here, because Assange is charged in federal court for alleged violations of federal law. State shield laws only apply in state court (or in federal court where state law provides the substantive rule of decision). And in any event, even if a state shield law applied, that would not matter in this case; the government is not trying to uncover Assange's source; everyone knows it was Manning.

Julian Assange is a creep and possibly a rapist too. He is not a responsible journalist and arguably not a journalist at all. None of that matters. The protagonists in important First Amendment cases are often creeps or worse. The principles such cases establish apply much more broadly. Accordingly, one can and should protest the broadened indictment against Assange without feeling any sympathy for the man or his specific actions.