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.


Shag from Brookline said...

Regarding the sixth paragraph of this post, why weren't there prosecutions 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"? Because it would be risky from the government's standpoint to do so in trying to thread that needle between the two cases noted? Is the threading with Assange because he is not first-rate? Or not a responsible journalist? It seems that most journalists since such cases have taken comfort against such criminalization. If the prosecution against Assange is successful, how might that impact the role of journalists regarding matters of potentially national interests? Consider the power of the Executive through his Attorney General heading the DOJ to make charges of treason against political enemies. Threading the needle may be difficult, even for those with better eyesight than this geezer. But the 1st A continues in play in many ways beyond the speech and press clauses. Will SCOTUS sew a seam protecting the Executive?

By the way, it's even more difficult defining who is a journalist what with social media. Didn't someone say recently that "We're all journalists now"? But as the post points out, journalists get the benefit of the 1st A's speech clause, not the press clause. Can journalists accept that and still do first-rate jobs?

I now better understand what is involved with the charges against Assange, who has at times been creepy, but he did expose torture, etc, during Iraq II, when the government was creepy. Now it is being reported that president Trump is considering pardons for military members found guilty/accused of war crimes.

Michael C. Dorf said...

W/r/t Shag's question why the govt hasn't heretofore prosecuted journalists in circumstances like these, Steve Vladeck writes that there has been a century-plus practice of govt forbearance in such cases. https://www.nbcnews.com/think/opinion/trump-administration-s-assange-indictment-referendum-constitution-ncna1010181 To my mind, that's less of an explanation than a restatement fo the question. Surely there have been periods in the last century when the govt would have wanted to prosecute aggressively.

Shag from Brookline said...

Mike's comment brought to mind Schenck v. US (1919) which did not involve a journalist but demonstrated aggressive action by the government under the Espionage Act. Justice Holmes' view that the 1st A speech clause does not protect a person yelling fire in a crowded theater was inapt to the facts in the case that involved distribution of anti-war leaflets in a public venue. A few years later Holmes seemed to have changed his view somewhat in a dissent. But the 1st A continues to evolve in many regards, including politically with the religion clauses.

Thanks for the article link.

Joe said...

The link to Bartnicki v. Vopper,needs to be fixed.


It is somewhat ignored, as touched upon, that a nose count in the Pentagon Papers suggests the actions there might have been prosecuted under its terms. The two main problems there were prior restraint and separation of powers (Nixon claiming some sort of inherent power to stop the presses there).

Bartnicki is akin to the Pentagon Papers to the extent that it involved use of communication illegally obtained by a third party. It leaves open charging people involved directly in such conduct (such as Daniel Ellsberg). There was room to do this here, especially in the less extensive earlier indictment. This one is overbroad.

The opinion leaves open a "need of the highest order" ... it is unclear what that entails. It is arguable that Wikileaks involve information that endangers numerous people. The line-drawing there is problematic but unclear to me it is actually the same as what other sources such as the NYT provided. I think Manning was rightly prosecuted at any rate (leaving open questions of over-prosecution and treatment in prison) and the means used to obtain the material provides a way to prosecute Assange.

I also think the U.S. should hand him over to Sweden first to handle the rape allegations. Finally, mostly agree on the "it doesn't matter" but in practice there are numerous cases where a "journalist" does get special rights. They might mainly be state related but to my understanding, even the federal government as a matter of policy had (has?) guidelines that make that relevant.

Joe said...

("hand him over" or consent to that matter to be handled first)

Greg said...

In the Assange case, the hacking element seems meaningful to me. As I understand it, Assange tried (unsuccessfully) to help Manning illegally obtain access to additional documents. That's a whole lot more than just agreeing to publish whatever Manning sends.

The closest real-world version of this would be if Manning provided a fuzzy picture of a key to a safe and asked Assange to provide a working key. Assange allegedly then attempted to make a working version of the key, but failed to successfully do so. This is a long way from just agreeing to disclose documents if they are received.

This active component of trying to access additional information would seem to be relevant to the Bartnicki exception of not participating in obtaining the information.

To put a slightly different version of this:
Assume a source illegally gives your client document A, and then asks for the client's help in breaking into a safe to illegally obtain document B. If your client actively helps the source break into the safe (but fails to do so) does Bartnicki protect your client from prosecution for disclosing document A? What if your client successfully broke into the safe, does Bartnicki continue to protect your client's right to disclose document A, even though it clearly does not protect your client's ability to disclose document B?

My guess is that most juries would have a hard time distinguishing the protections for disclosing those two documents, and would probably consider both documents to be eligible for prosecution.