Depending on who you listen to, Julian Assange is either a dangerous threat to national security in cahoots with the Russian state or a swashbuckling crusader for free expression.

When the US indictment of Julian Assange was expanded in late May to include 17 counts under the Espionage Act, the WikiLeaks founder took to the barricades on his favourite social media platform. ‘This is madness,’ he said. ‘It is the end of national security journalism and the First Amendment.’

The man hunting Assange, Assistant Attorney General for National Security John Demers, assured a group of reporters that it was nothing of the sort. ‘The Department [of Justice] takes seriously the role of journalists in our democracy and we thank you for it,’ he said.

‘It has not and never has been the Department’s policy to target [journalists] for reporting. But Julian Assange is no journalist.’

The truth, as usual, lies between the extreme postures adopted by the two parties to the case. Assange is enough like a national security journalist to alarm guardians of the First Amendment, but distinguishable enough to satisfy national security lawyers who genuinely care about press freedom. The problem is that the distinctions may be irrelevant under the Espionage Act – leaving future publishers of intelligence leaks at the mercy of prosecutorial discretion.

The Assange prosecution does not mark the end of national security journalism so much as its recalibration. Media counsel, who used to be secure in the belief that there would be no consequences to the media for publishing leaks, must now think more carefully about the publication of military or diplomatic secrets. It’s hard to believe that the Trump administration does not welcome this development, given that it reopened the Assange investigation as part of a trumpeted crackdown on leaks – knowing full well that the Obama Department of Justice (DOJ) quashed an earlier Assange indictment, reportedly out of concern for the First Amendment.

The 1917 Espionage Act has long been called a ‘ticking time bomb’ by the dean of the First Amendment bar, Floyd Abrams, because it would seem by its terms to apply to journalists. And there is no constitutional precedent that clearly protects the press from prosecution. The Pentagon Papers case (which a young Abrams helped to litigate for The New York Times) protects the publisher of security leaks only from prior restraint. The case of Bartnicki v Vopper helpfully established that a journalist cannot be punished for publishing information obtained illegally on a matter of public concern, so long as they didn’t actively collaborate in obtaining the information. But Bartnicki was not a leak case and the courts have never tested the argument that, when it comes to the public interest, national security overrides free speech.

For years, media lawyers have dreaded an Assange prosecution because he is a deeply unsympathetic test plaintiff, and he plays a role awfully similar to any good journalist on the security beat. Both actively solicit classified information of ‘political, diplomatic or ethical significance’ (to borrow from WikiLeaks’ mission statement), and offer a mechanism to share it securely and anonymously. Indeed, according to The Washington Post, in 2013 the Obama administration dropped their plan to prosecute Assange for spreading secrets shared by the former intelligence analyst Chelsea Manning precisely because they feared that Assange couldn’t be distinguished from a journalist; they called it a ‘New York Times problem’.

So what happened to change the Justice Department’s mind between 2013 and 2019? The innocent explanation, offered by Mary McCord, who served as Acting Assistant Attorney General for National Security during the Obama administration, is that the case became more distinguishable. The investigation found new evidence that Assange not only encouraged Manning to leak secrets (as any journalist would), but tried to ‘crack the password’ for the Secret Internet Protocol Router Network used by the Pentagon for military secrets. The less innocent explanation is that what the Obama DOJ viewed as the ‘New York Times problem’, the Trump DOJ viewed as their New York Times opportunity. Harvard Law School’s Jack Goldsmith sees the Assange prosecution as a conscious attempt to curtail the epidemic of security leaks in the internet age by sowing doubt about the media’s perceived impunity for publishing state secrets.

McCord agrees with her successor, Demers, that on the facts presented, ‘Assange is no journalist’. First, reporters don’t personally hack into the Pentagon’s computers. Second, they don’t conspire with a hostile power to torpedo US democracy, as the Mueller Report shows Assange did. Third, responsible media outlets protect vulnerable whistleblowers and intelligence informants, whereas WikiLeaks failed to redact the names of 100 Afghan sources (to the public consternation of its media partners). Indeed, the three counts in the indictment based on the sheer act of publication focus on Assange naming individuals ‘who risked their safety and freedom by providing information to the United States and our allies’.

Media advocates are unmoved. James Goodale, the legendary ex-General Counsel of The New York Times, has written that if it succeeds, ‘investigative reporting based on classified information will be given a near death blow’.

Gabe Rottman, Director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press, is most disturbed by the three counts based on pure publication (as opposed to complicity in the leaking of secrets, or computer fraud conspiracy). ‘The legal theory in those charges is that you can violate the 1917 spying law in this country by publishing classified information online,’ says Rottman. ‘That’s something new and it’s profoundly troubling from a First Amendment perspective.’

Rottman finds little comfort in McCord’s distinctions. ‘The theory of liability does not turn upon the publication of informants’ names,’ Rottman argues. Naming an informant is ‘an ethical and practical distinction, but it’s not a legal distinction’. The hacking allegation matters only for the single count of computer fraud, he says. And the allegation of conspiring with Russia is not part of the Manning case.

Former White House press secretary Sarah Huckabee Sanders takes questions from reporters at the White House

At the end of the day, the only thing standing in the way of an Espionage Act case against a journalist is prosecutorial discretion. And prosecutorial discretion is just a fancy way of saying Justice Department norms. That inspires little confidence under a President who routinely shows disdain for norms of all kinds, attempts to politicise the Justice Department and calls the media an ‘enemy of the people’.

Abrams has nothing but harsh words for Assange, and contrasts his recklessness with The New York Times’ painstaking efforts to handle leaks responsibly. But weaponising the Espionage Act against Assange is an undeniable threat to the media.

‘The real risk here is that something will be published that really gets this president in particular, and this attorney general in particular, angry,’ says Abrams. ‘And ready to do whatever they can in whatever they define as the law to sort of pay back. My real concern, at least in the immediately foreseeable future, is that something goes badly wrong. Some military, quasi-military activity fails and some American government, especially this one, looks around for who to blame. And this indictment does open the door for that.’

It’s entirely possible that the case dead-ends because the US fails to extradite Assange from the UK. Political offences are not extraditable under the governing treaty, and the English courts could easily deem espionage ‘political’. Alternatively, Sweden could revive its rape charges against Assange, and the English courts could deem rape more serious than espionage.

Even in this scenario, the battle could proceed on another front. The Democratic National Committee is pressing a civil case against Assange (alongside WikiLeaks and Russia) for the hacking detailed in the Mueller Report. Free press advocates argue in an amicus brief that the civil suit jeopardises the principle that the First Amendment protects the publisher of information obtained unlawfully by a source. The Democratic National Committee retorts that the First Amendment does not create a right to undermine democracy or commit espionage.

More fundamentally, if America’s aim in prosecuting Assange was to recalibrate the practice of national security journalism, it may already have succeeded. ‘I think it is indisputable that the [mere] existence of the superseding indictment has changed the way that lawyers think about national security reporting,’ says Rottman. ‘Newsroom lawyers will have to contend with the fact that the government has brought charges against an entity simply for publishing classified information online. That will be part of their calculus.’ On this view, Assange’s indictment was ‘a shot across the bow to make news organisations more reticent to publish government secrets’.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org