“Publishing is not a crime,” the editors and publishers of The New York Times and four leading European news outlets say in an open letter released last week. While that statement might seem uncontroversial, the U.S. Department of Justice disagrees, as evidenced by its prosecution of WikiLeaks founder Julian Assange for obtaining and disseminating classified material.
In urging the Justice Department to drop that case, the Times, The Guardian, Le Monde, Der Spiegel and El Pais implicitly acknowledge that freedom of the press is meaningless when the government decides who is allowed to exercise it. Although that point also might seem obvious, journalists who take a dim view of Assange have long argued that attempting to imprison him for divulging government secrets poses no threat to their work because he does not qualify as a member of their profession.
That position is profoundly ahistorical. As scholars such as UCLA law professor Eugene Volokh have shown, the “freedom … of the press” guaranteed by the First Amendment protects your right to communicate with the public through the printed word and other tools of mass communication, regardless of whether you do that for a living or work for a mainstream news organization.
The Assange exception to the First Amendment is also dangerously shortsighted. As the Times et al. emphasize, the conduct at the center of the case against him is indistinguishable from what professional journalists do every day when they reveal information that the government wants to conceal.link