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Prosecuting Assange under the Espionage Act

Gabriel Schoenfeld

My friend Andy McCarthy has taken issue with a portion of my Wall Street Journal piece on Julian Assange. Even as Andy generously praises my op-ed, he says I dug an unnecessary hole from which I then had to dig myself out.

The issue is the First Amendment. I noted in my article that if Julian Assange were prosecuted under the Espionage Act, he would challenge a conviction on First Amendment grounds, asserting that as a journalist he is entitled to the constitutional guarantee of freedom of the press.

Andy responds to this with two prongs, both of which raise fascinating questions.

First, Andy says that “Assange is not a journalist,” suggesting thereby that the courts will not treat him as such and that Assange therefore could not invoke a journalist’s First Amendment protections.

I am not persuaded. Journalism means a lot of different things these days; in a world of bloggers and tweeters, the boundaries of the profession are in flux. What is clear is that WikiLeaks gathers information and it publishes information, clearly two core journalistic functions. What are the courts likely to say?

The canonical decision is Branzburg v. Hayes (1972), where the Supreme Court held that “freedom of the press is a ‘fundamental personal right’ which is not confined to newspapers and periodicals.” Indeed, the freedom belongs to everyone from “the lonely pamphleteer who uses carbon paper or a mimeograph . . . [to] the large metropolitan publisher.” Assange certainly falls somewhere within that continuum. And the First Amendment would therefore protect him. The only question is how far that protection will run. The fact that Assange has, as Andy observes, “an unabashed goal of undermining the United States” may be relevant to his guilt but is wholly irrelevant to his rights.

Speaking of those rights, Andy then suggests that I am mistaken in assuming that an alien like Assange—an Australian citizen who lives in Europe—“has free speech and free press rights derived from the American Constitution.” The Constitution, argues Andy, “is intended to protect Americans from arbitrary or abusive acts by their government, not to protect aliens outside our borders, much less enemy aliens.”

Does this line of reasoning hold up?

The contention that the Bill of Rights stops at the water’s edge certainly has a surface appeal, and I can’t quarrel with Andy that “constitutional protections do not extend to aliens located overseas.” The Second Amendment right to bear arms certainly does not extend abroad to the citizens of, say, Japan or Venezuela. Although the example is preposterous, it is nonetheless worth inquiring exactly why our gun rights do not obtain in Tokyo or Caracas. The answer is that the United States does not exercise jurisdiction there.

But, on the other hand, when and where we do exercise jurisdiction over territory, our constitutional protections follow. Assange may be an alien, but if he were put on trial under the Espionage Act, he would not be located overseas. Rather, he would be on U.S. territory where the Constitution and the protections offered by the Bill of Rights, including the First Amendment, are in full force.

The protections provided by the Constitution are coextensive with the powers it authorizes. If an alien were somehow not protected by the First Amendment, he would also be beyond the reach of federal prosecutorial power. He who is subject to our laws is also protected by them. Has there ever been a case in which an alien was put on trial in a U.S. court and the Bill of Rights was suspended in whole or in part? I don’t think so.

I didn’t dig a hole for myself in my op-ed. I was trying to mine for gold.

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