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Does Assange merit First Amendment protection?

David Ignatius on

WASHINGTON -- Is Julian Assange a journalist? The Justice Department sidestepped that question in its indictment of Assange. But his case is still certain to stir a debate about whether the WikiLeaks founder deserves protection under the First Amendment.

Assange was arrested in London Thursday, as U.S. prosecutors unsealed an indictment accusing him of conspiring with Chelsea Manning to hack a Pentagon computer in 2010 to obtain secret documents that WikiLeaks hoped to publish.

The indictment skirts First Amendment issues by focusing on Assange's alleged attempt to help Manning crack a password and gain special "administrative-level privileges," an effort that proved unsuccessful. But the underlying "purpose and object of the conspiracy" was "so that WikiLeaks could publicly disseminate the information on its website," prosecutors said.

Assange's supporters describe his arrest and proposed extradition to America as an attack on press freedom. But there's some skepticism about that claim, even from several of the country's most prominent defenders of the First Amendment.

"When you read the indictment, it doesn't look like anything that turns on whether Assange is or is not a journalist," said Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press, in an interview Thursday. "No newsroom lawyer would tell a reporter it's OK to do what's alleged in the complaint -- to help a source break a password and hack a computer."

Assange's lawyer, Barry Pollack, countered that his client deserves to be treated as a journalist. He said in a statement that while the indictment alleges a conspiracy to commit computer crimes, "the factual allegations ... boil down to encouraging a source to provide him information and taking efforts to protect the identity of that source."

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Pollock amplified his comment in an email: "I do not find the question of whether he is a journalist a tricky one. Mr. Assange publishes truthful information that is of public interest. I think that is a pretty good definition of 'journalist.'"

Actually, the federal legal meaning of what constitutes journalism is all but nonexistent. Garrett Epps, a professor of constitutional law at the University of Baltimore, describes it as "a strange twilight zone in terms of the Constitution," because the Supreme Court has never clearly explained who gets the Bill of Rights freedom afforded to "the press."

"The courts haven't extended any protection to journalists that they haven't extended to the public at large," explained Jameel Jaffer, director of the Knight First Amendment Institute. "This is in part because extending special protections to journalists would require the court to say who's a journalist and who isn't."

Assange's information-dumping actions make some First Amendment lawyers queasy. "There is a fundamental difference between someone who shines a spotlight on classified information and someone who turns on all the lights," said David Kendall, who represented President Clinton during his impeachment hearings and Hillary Clinton during the 2016 email investigation.

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