The U.S. Department of Justice has made the right decision to not prosecute WikiLeaks' founder Julian Assange for publishing leaks from former U.S. Army intelligence analyst Bradley Manning, if a recent report in the Washington Post is correct, press freedom advocates said.
It's appropriate for the DOJ to recognize Assange as a second-party publisher of leaked information, subject to the same press freedom protections as other publishers, said Lucy Dalglish, dean of the College of Journalism at the University of Maryland and former executive director of the Reporters Committee for Freedom of the Press.
In July, a U.S. military court found Manning, who now goes by the first name Chelsea, guilty of violating the Espionage Act and other offenses, and the DOJ has pursued U.S. National Security Agency leaker Edward Snowden for his disclosures earlier this year. While whistleblowers perhaps should have additional legal protections, publishers have long had legal protections in U.S. law, Dalglish said.
Assange is "not the person who took the information," she said. "The person who took the information and the publisher are two separate roles."
If the Washington Post story is correct, it would appear that the DOJ hasn't found enough evidence that Assange assisted Manning in leaking the classified information, Dalglish said.
The Post story, quoting anonymous DOJ officials, said the agency has concluded that if it prosecutes Assange it would also have to prosecute mainline newspapers for publishing classified material, such as the Snowden leaks. A DOJ spokesman declined to comment on the Post story.
Matt Wood, policy director at media reform group Free Press, agreed with Dalglish that government leakers and publishers operate under different rules, with publishers and reporters protected by the U.S. Constitution's First Amendment.
"Reporters are in a different position from whistleblowers," he said in an email. "People on the inside face tough decisions and play an incredibly important role in bringing abuses to light, but they have some duty of confidentiality to their employers. Reporters, on the other hand, have a duty to report the truth, and the First Amendment protects the freedom of the press to do just that."
Any prosecution of the press would run counter to the First Amendment, "whatever penalties whistleblowers should or shouldn't face," he said. "And while some might debate whether Julian Assange is a reporter, we need to protect journalism in all forms -- not just at established news outlets."
The DOJ's apparent decision to treat leakers differently than publishers is a "distinction of necessity," added Joshua Bressler, a First Amendment lawyer with Bressler Law in New York. It's legally realistic to expect prosecutions of leakers, who've taken information in violation of their agreements with the government "whether or not you sympathize with their political views," he said.
But Assange did not have the same restrictions, he said.
"It is difficult not to treat Assange as a journalist in this context, irrespective of his motivation," Bressler said. "It then becomes difficult to selectively prosecute those who have chosen to publish. You have traditional media stalwarts who've decided to share this information, and it becomes inviable to single Assange out."
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is [email protected]