Who is a journalist? Don’t let the government decide

WikiLeaks founder Julian Assange’s indictment under the Espionage Act is so controversial that at least two of his prosecutors argued against the decision to indict. Significantly, we know this because it was leaked to news media.

Leaks to the media are as much of a Washington routine as the annual National Cherry Blossom Festival. So are internal debates between members of the same prosecution team.

But the Assange dispute is a higher-stakes argument than most. He is the first publisher in any medium to face criminal prosecution under the 1917 Espionage Act for publishing classified information, even though newspapers have routinely published government secrets that have been leaked to them, including some by WikiLeaks.

In this case, an enormous trove of classified documents was provided to WikiLeaks in 2010 by Chelsea Manning, a U.S. Army intelligence analyst who later went to prison for the leaks.

Until now, the Espionage Act has been used to prosecute spies and employees with classified clearances who violated their oath by leaking to the press. But federal prosecutors have avoided using it to prosecute journalists for receiving or publishing those leaks.

Prosecution under the Espionage Act raises the ante by treating journalists the same as spies. In other words, prosecutors could be stepping over the line into the criminalization of journalism, a direct violation of what most of us consider to be a First Amendment right.

I say “most of us” because this argument has never been fully tested in the courts.

But under existing law, President Donald Trump’s Justice Department has gone where President Barack Obama and Eric Holder, his attorney general, decided after long consideration and internal debate to avoid.

And Obama and Holder, let us not forget, were no softies in pursuing leaks. Obama’s Justice Department subpoenaed the phone records of AP journalists. They went after Fox News reporter James Rosen, naming him as a “co-conspirator” in a leak about North Korea’s nuclear program.

But Holder assured us he had no intention to lock up journalists. The Trump administration appears to be leaning in the other direction in the Assange case. “The department takes seriously the role of journalists in our democracy,” John Demers, the head of the Justice Department’s National Security Division, said when he announced the indictment May 23. “But Julian Assange is no journalist. This is made plain by the totality of his conduct as alleged in the indictment.”

But who is to decide these days who’s a journalist and who isn’t? Demers, like many others, judges Assange’s “conduct” to be unbecoming of a good journalist. It may not be his intention, but do we want government officials to tell us who is and isn’t a journalist, as they do in countries that license journalists?

I hear the question of who’s a journalist in the same way that a Supreme Court justice defined obscenity: I know it when I see it. I see Assange as a journalist, although an often disturbingly and even dangerously freewheeling example of the breed.

If the Trump administration continues its pursuit of the Australia-born Assange under a law intended to capture and punish spies, it could ultimately set a dangerous precedent to be settled by the Supreme Court, where the outcome would be unpredictable. And prosecutors similarly should be concerned about pitting press freedom against government accountability in a bruising constitutional battle.

Assange may fall way short of being a model journalist, but pursuing him as a spy only makes bad matters worse.