Assange And The First Amendment: It’s Complicated

Let’s quickly review the relevant rules.

As most Americans know, the First Amendment protects free speech and freedom of the press. That freedom is not absolute: you cannot falsely cry fire in a crowded theater, nor blithely libel someone you don’t like, nor spill trade secrets in contravention of an agreement not to do so. Members of the press who report damaging, untrue information about public figures with “willful disregard” for its accuracy can be held accountable.

In most cases, the persons harmed by such improper behaviors can sue only after the fact. Our legal system has a strong bias against prior restraint–against enjoining publication in the first place. (That bias goes back to the era when England required publishers to obtain government permission before printing anything.) But even that strong presumption against prior restraint can be overcome in extraordinary circumstances–someone proposing to identify American spies abroad, or to disclose upcoming troop movements in wartime could certainly be kept from doing so.

It is probably impossible to overstate the importance of journalism to democracy–as one masthead puts it, democracy dies in darkness. Autocrats routinely take control of the media. That’s why Trump’s constant attacks on the press are so worrisome–and so unAmerican. Those attacks are probably one reason that the arrest of Julian Assange has raised such an outcry.

How does this apply to what we know thus far about Wikileaks and Julian Assange?

Assange’s Wikileaks published illegally procured classified information. Under First Amendment law as I understand it, his publication of that information is protected.

Engaging in criminal activity to acquire the information, however, is not. And that is what the government–so far–is alleging.

Typically, a whistleblower or other source of illegally obtained material is the one breaking the law; a journalist is not a lawbreaker simply because he or she received it. Here, it is alleged that Assange materially assisted Chelsea Manning in the hacking through which they acquired the information. If the government has persuasive evidence that Assange played an active role in the hacking, his conviction for that behavior would not implicate press freedom.

If there is no probative evidence that Assange broke the law in obtaining the information, or if the government expands its charges to include publication, analysis of the situation changes.  Journalists who have expressed First Amendment concerns are also worried about a “slippery slope”–especially since Assange is such an easily detested and unsympathetic figure, his case could conceivably set an unfortunate precedent. So long as the government prosecutes him only for illegal hacking, however, I think the First Amendment is safe.

This episode comes at a time when the First Amendment is under pressure from the craziness on the Internet, from conspiracy theories promulgated by provocateurs like Alex Jones, and from propaganda mills like Fox News. It’s really tempting to argue that some speech, some “news,” falls within the category of falsely shouting fire in a crowded theater. Efforts to ensure that news sources are truthful and fair, however, present us with the same dilemma that faced the nation’s Founders: who gets to decide?

Is freedom of expression dangerous? Yes. The First Amendment enables hate radio, protects propaganda and the spread of deliberate misinformation, and makes it difficult for even conscientious citizens to separate truth from fiction. But the Founders concluded that the alternative– giving government the authority to decide what information we see– would be even more dangerous.

Unless some genius can devise a way to keep information honest without empowering government censorship, slimy characters like Julian Assange will cynically market their activities as First Amendment expression. Chalk it up to the cost of protecting liberty.


  1. Thank you, Sheila, thank you! From news sources I’ve read since Assange’s arrest I have been one confused old lady on this subject. Good to have a reasoned analysis to get things straight.

    Now if we could just get the local news outlets to stop already with the “Breaking News! There MIGHT be bad weather next week! Take precautions. Stay tuned!”

  2. Two aspects of the case make it even more problematic: 1) As I understand the allegations, Assange offered to help crack a password – there is no mention either that Chelsea Manning accepted this offer or that Assange’s help resulted in breaking the password. The offense charged – again as I understand matters – is conspiracy, and generally that the goal of a conspiracy need not be reached for a person to have committed conspiracy (if the goal involves illegality); 2) This is from 2010 and the prior administration passed on seeking indictment on this charge. Julian Assange is a scumbag, but “good facts make bad law.” In this instance a deserving defendant makes bad law.

  3. The First Amendment allowed Kellyanne Conway to create her version of “Alternative Facts”. She will be forever known for that claim.

  4. Loopholes, loopholes, loopholes!

    “nor blithely libel someone you don’t like” How many times has Trump been guilty of this exception to free speech? The arrest and physical removal of Assange is an issue which needs to be addressed; it is also another in the growling list distractions to Trump’s immigration obsession and “while we were sleeping” actions and inaction by McConnell and the Senate. The entire current Trump chaos, including the Assange issue, is something else the Founders could not possibly have foreseen. Another issue where the body of proof and Rule of Law are at odds (the complication) while we watch the House and Senate on the Legislative battlefield; “full of sound and fury, signifying nothing” and getting little, if anything, accomplished.

    “Assange and the First Amendment: It’s Complicated” Everything regarding the current administration is complicated; we have been given another complication taking us back to the 2016 election and leading to the 2020 election.

  5. Just a reminder, Julian Assange is an award-winning journalist. He published documents which exposed heinous war crimes which made the MIC look bad.

    Now, are the soldiers who committed these crimes in prison? NO.

    Are GWB and Dick in the Hague for lying us into war and killing upwards of 1 million people? NO

    I find it amusing when I read comments like “scumbag” and “slimy” attached to Julian Assange but not our beloved war criminals who’ve manufactured coups in over a dozen different countries only to obtain access to precious minerals and oil.

    Millions of people have been killed, and a million more have been displaced. When we cut off foreign aid to get the people rebelling against their leadership, some of the residents of that country leave for more fertile soil like the USA. This is one of the reasons why Europe and the USA are flooded with mass immigration.

    My personal belief is Democratic Party loyalists dislike Assange because he exposed the DNC and Clinton as true scumbags for interfering in Bernie Sanders campaign and plotting to get Trump elected since Clinton/Podesta believed they could easily defeat Trump.

    Furthermore, the source of the DNC leak was internal–they were not hacked. It’s already been proven that the speeds of the downloaded items were internal. Meaning it was most likely, Seth Rich. Yes, the young man who was murdered on the street during a robbery in which nothing was stolen.

    Lastly, if you listened to the newly USA installed Ecuadorian president video, his lips were moving by the CIA provided the words. What leverage did the USA have on this man prompting him to revoke Assange’s asylum??

    Even though the charges are bogus and “trump’d” up, if his lawyer and the ACLU are smart enough, we’ll get at the truth on several matters mentioned above.

  6. I have never found this matter ‘complicated’ – the fact is he is NOT an American Citizen and he acted as the agent of a foreign interest to damage and influence OUR elections. He is an enemy of the American government and people (.) Sorry if any don’t think so. But that is just fact.

  7. Mark is correct. Conspiracy to commit an illegal act is a crime in and of itself irrespective as to whether the crime conspired to comes to fruition. Sheila has neatly outlined the problem from both an historical and contemporary view but, as usual, the outcome rests on admissible evidence, and yes, freedom of speech and of the press is not absolute. Like all freedoms, there are exceptions where the greater good demands it. During WW II, for instance, we had a saying that went “Loose lips sink ships,” thus curtailing one’s freedom of speech but for the greater good (the war effort) at the time.

    Thus defamation of a public figure has a higher bar than an ordinary suit in slander or libel and requires malicious intent under NYT v. Sullivan, a 1964 case, the theory, among others, being that public figures should be held to a higher standard of accountability and thus harder to defame than ordinary litigants in defamation matters, which demonstrates that the courts will look to the standing of the parties in determining the appropriate standard to apply. Thus the Trumps and Nunes of this world have uphill climbs in proving they have been defamed.

    As to Assange, Sheila correctly lays out the alternatives. If he was an active participant in obtaining or conspiring to obtain the classified information he subsequently spewed forth, and the government can prove it, he’s toast. If he was not an active participant in obtaining such information, he has a good chance to walk. As usual, the outcome depends upon the evidence.

  8. Instead of “scumbag,” I should have said “individual acting within the media as an agent of a hostile foreign power.” There are matters the release of which came about because of Assange that were matters about which we had a right to know . He also refused to publish the Panama Papers and described them as an attack on Putin. Bush and Cheney should answer for what they did. We should not lose sight of what Assange has done in service to his, and dt’s, master. In this indictment, Assange is accused of a conspiracy to attempt something that was unsuccessful. In Indiana, there would have to be a substantial step toward the goal. I am not sure whether Assange’s conduct – offering to connect a person with someone who could crack the password – in the matter for which he is charged, would meet that.

  9. Todd, I agree with you concerning Julian Assange. How quick the Pavlov’s response is produced to label him “slimy” or “scumbag”. Edward Snowden and Manning have been labeled traitors, for exposing America’s high crimes.

    After 9-11 not a single senior US official was sacked. Somehow our “Intelligence agencies” missed this planning of 9-11. The lies about the WMD’s in Iraq – opps. Once again a failure of the “intelligence agencies” no repercussions. Extraordinary rendition, torture, and Gitmo but the “wheels of justice” grind the whistle blowers, not the real criminals.

    I good article by Chris Hedges:

  10. Kudos to Todd. Governments act in different ways to cover up their paths to obtain or jail sentence for those uncovering their governments plots and heinous crimes against the people.
    Remember Khashogi, the Eqyptian Washington Post journalist who was cut up in Turkey. Don’t think those two governments weren’t in cahoots. The doctrine of “political Islam” is far reaching. Warner is an another author I began exploring just yesterday. I’m sure he has his detractors.
    What’s more confusing in regard to Assange is Trumps movement on this issue. If he benefitted is he reacting to cover up his true motivations. How is he being influenced by the intelligence community?
    All sides are now apparently going after this man as he apparently has released information that affects ability of our government to operate and those in the government who have abused it and “the cats been let out of the bag”.

  11. Todd,

    If you want to read appropriate adjectives for those creatures of the lies, you don’t have to go far. They are in this blog’s history, and any number of books and magazine articles.

  12. In the meantime, while every eye was on Assange, the man in the WH told his “acting” head of the DHS to go ahead and break the law, that he would pardon him. I don’t care in what context this command was made, it it outright rejection of the Rule of Law. If the President cannot and will not uphold the law as he swore under oath to protect and defend, if the Congress fails in its sworn responsibility as a counter-balance, if the packed judicial branch is compromised as well, citizens are left with few options to access or even to trust the truth.

    P.S. We also do not know what, if anything, Roger Stone and Assange has to say to one another as Stone has taken the 5th. Who will flip first?

  13. Any journalist or individual hostile to the DNC should be jailed and have their lives destroyed. We can never forgive Russia for stealing the election from Mother. Obviously,Putin got to Republican Daddy Mueller as well. Assange must pay. As for our current pResident,Trump will be forgiven when he sneaks some candy to Michelle Obama at some function of the state.

    The CIA is our ally. Do they lie to us –the public,yes. That is and should be most welcome and it makes me happy seeing so many accept the deep state at face value. A deep state that has willingly brought us the Gulf of Tonkin to WMD’s in Iraq,et al.

    We should always accept advice/the narrative from those that have been proven wrong over and over. Bring on Cold War v2.0 and long live the MIC. Vote Biden 2020.

    Mother will be vindicated.

  14. If Assange had nothing to fear and was not guilty of breaking multiple, why did he seek sanctuary in a foreign embassy for multiple years? He has been accused of two rapes and refused to face the legal consequences. He’s also accused of illegal hacks (break-ins) to obtain information, and he reportedly was not even an appreciative or clean house guest of those who gave him sanctuary for years. Unsympathetic figure is a kind way to describe him.

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