Indicting a journalist? What the new charges against Julian Assange mean for free speech

By indicting Julian Assange under the Espionage Act, the Trump administration has crossed a line that every other US administration has shied away from: challenging the first amendment in defence of government secrets.

The only reason the 102-year-old act does not criminalise national security journalism is because no administration has sought to put it to the test. The law bans the publication of government secrets and offers no explicit protections to the press under the amendment guaranteeing freedom of speech.

Until now, most legal observers have argued that the law would not survive scrutiny by the supreme court if it were ever used against journalists.

The Obama administration debated whether it could be used against Assange after his organisation, WikiLeaks, published military communications from the Afghanistan and Iraq wars, as well as a huge trove of diplomatic cables. But Obama’s team ultimately decided against taking that step.

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Matthew Miller, who was a Department of Justice (DoJ) spokesman at the time, recalled: “The justice department in the Obama administration thought it would be very dangerous to charge Assange with publication, as the Espionage Act doesn’t make any distinction between journalists and non-journalists.

“The second reason – which we never got to – was that no one was sure if it would withstand constitutional scrutiny. It probably wouldn’t,” Miller said. “That said, the supreme court has changed significantly since then, and maybe the DoJ has made that calculation.”

Trump’s justice department has argued that by encouraging Chelsea Manning, the whistleblower in the case, to hack material from inside secure servers, and publishing without regard for the safety of people named in the documents, Assange does not fit the definition of a journalist.

Related: Chelsea Manning jailed again as she refuses to testify before grand jury

The assistant attorney for national security, John Demers, declared: “Julian Assange is no journalist.”

But “journalists don’t seem to be taking a lot of comfort from that”, said Quinta Jurecic, the managing editor of the Lawfare blog, pointing out there is no statutory definition of journalism. “This is what journalists have been worried about. The concern is that basically the government has just taken a step closer to indicting a journalist for the same activities.”

Scott Horton, an international human rights lawyer who lectures at Columbia Law School, said the administration could try to produce evidence to support a contention that in 2016, Assange knew that he was receiving emails stolen from the Democratic party by Russian military intelligence, proving he was acting as a foreign agent.

“That would open a Pandora’s box for this administration, which is trying to get away from the idea of collusion,” Horton said. “The downsides for the Trump team are extremely dangerous.”

The 17 new indictments could also work against current US efforts to get Assange extradited from the UK. The extradition treaty between the two countries has an exception for political offences and Assange could raise issues under the European Convention on Human Rights, said Stephen Vladeck, law professor at the University of Texas.

“I don’t know that this will ultimately affect the result of the extradition proceedings but it will certainly complicate them,” Vladeck said.

Even if Assange is extradited, the effort to create a loophole in the first amendment to charge Assange is a huge gamble for the Trump administration, and one with potentially severe consequences for the freedom of the press.

“That’s why press freedom advocates see a case like this as a constitutional Rubicon,” he added. “Because no matter what we think of the individual defendant, once the government sets a precedent that merely publishing or even receiving this kind of information … can subjected to prosecution, it’s hard to see why the same theory couldn’t encompass and therefore chill some of the most important journalism we see.”