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  • Eric A.S. Harvey, JD

First Amendment Still Under Threat: Use of Espionage Laws to Pursue Assange Invalid

Updated: Feb 2

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By Eric A.S. Harvey, JD


COPYRIGHT PENDING 2020


Photo Credit: MarketWatch.com


It’s 25 July 2010. Anti-secrecy platform Wikileaks has just published 75,000 documents of “The Afghan War Diary.” In total, the planned leak contains 91,000 documents. The documents pertain to U.S. military activity in Afghanistan from January 2004 to December 2009. Most of the documents in “The Diary” are classified “secret” by the U.S. government.

With the leak, the public becomes aware of how the U.S. military is needlessly killing Afghan civilians en masse and torturing countless in detainment facilities. In addition, according to “The Diary,” many U.S. military contractors are sexually exploiting child prostitutes. With “The Diary,” a myriad of problematic behaviors (beyond the aforementioned) by the American military in the Middle East are on display for the world to consume.

In the wake of the leaks, the U.S. Justice Department considers using the Espionage Act of 1917 to enjoin Wikileaks from releasing the remaining 15,000 documents in “The Diary.”

Passed when the U.S. had declared war on Germany in the second decade of the 20th century, the Act makes disseminating sensitive and classified material by dissident spies a criminal offense. The transmission of information, beyond those that are authorized to see it, is prohibited. Such transmission that puts American military enterprises and war-time national interests in jeopardy is criminalized. The Act targets spies.

Although the Act, followed by The Sedition Act of 1918, is meant to criminalize political dissidence by spies, the Justice Department appeals to the American judiciary in seeking an injunction against Wikileaks---a publisher, and not a group of spies, that is comparable to any news publication.

It wasn’t until the early 1970s, with New York Times Co. v. U.S., that The U.S. Supreme Court allowed the importance of an informed public, towards the maintenance of a truly free and democratic state, to take precedence over issues of national security.

In New York Times Co. v. U.S., an enjoinder against The New York Times from continuing to release segments of The Pentagon Papers was invalidated. So, with the continued release of The Pentagon Papers, the American public learned about how corrupt America’s involvement in Southeast Asia from 1945 to 1967 was. Not too long after, the Vietnam War ended, and the man that leaked The Papers to NYT, Dr. Daniel Ellsberg and his colleague from the Rand Corporation, Anthony Russo were relieved of criminal espionage charges. These charges would have landed them in prison for well beyond their respective natural lives.

Here, with The New York Times, the additional news publications that released segments of The Papers in tandem with The Times, Ellsberg, and Russo, we see champions of the First Amendment—heroes that not only brought a corrupt war to an end, but also fought for and won a battle for the preservation of The First Amendment.

Even though Wikileaks’ alleged offense occurred about 40 years after New York Times Co. v. U.S., the Justice Department felt that they could pursue the anti-secrecy platform in a way that is inconsistent with Supreme Court precedent. Nevertheless, until about a year ago, Wikileaks founder and editor-in-chief Julian Assange sought refuge in the Ecuadorian Embassy in London. There, he remained protected against arrest for his so-called offenses. The reasons for how the U.K. authorities pursued him may have ostensibly had to do solely with his skipping bail in Sweden following suspicious rape allegations Assange faced in the country. However, it has been posited that Sweden’s appeal to the U.K. to extradite Assange was motivated not by a desire to try Assange for sex crimes, but to make it as hard as possible for Wikileaks to function. In other words, it was Assange’s publishing enterprises and political dissidence that Sweden was interested in.

About a year ago, Assange’s asylum in the embassy was revoked, following a change in leadership in Ecuador. The new powers-that-be in the South American country intended to improve its relationship with the United States. So, English authorities dragged Assange from the embassy, and Assange has been held in a maximum security in the U.K since. He is on trial now, and the English government is considering whether to grant America’s extradition request. If Assange is extradited, it is likely he will spend well over his natural life in prison in the U.S.

Whistleblowers are protected to varying degrees by many laws. But, between New York Times Co. v. U.S. and the present-day, these laws have undergone abuse.

In my upcoming series of articles, I will argue that pursuit of Assange by U.S. authorities is invalid in its engagement of espionage and sedition laws.


In fairly recent times, it was with President Obama and onward that precedent from New York Times Co. v. U.S. to more recent cases and whistleblower protection laws were perverted to serve corrupt American interests. Toward the goal of arguing about the invalidity of revisions to espionage and sedition laws that became increasingly popular under President Obama and then egregiously more so under President Trump, the upcoming series of articles will feature thorough examination of legal history around the need for greater First Amendment protections for not only whistleblowers in general, but also the press.

Political activist Ralph Nader once said, “Information is the currency of power.” Keep that in mind. Let’s fight for freedom of the press. As the Founding Fathers knew, freedom of the press is fundamental in fighting tyranny---the antithesis to the truly free and democratic state that the U.S. is supposed to be. So, stay tuned.


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