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The UK high court decision granting WikiLeaks founder Julian Assange leave to appeal against his extradition shows just how far America has fallen when it comes to freedom of the press.
Assange faces 18 felony charges in the United States, including 17 under the Espionage Act, based on WikiLeaks’ 2010 publication of US state department cables and Iraq and Afghanistan war logs provided by the whistleblower Chelsea Manning.
Press freedom advocates, including at our organization Freedom of the Press Foundation, have repeatedly decried the Espionage Act charges against Assange as posing a grave threat to press freedom. So have law professors, lawmakers and the world’s leading newspapers.
Nonetheless, the high court gave the US every opportunity to secure Assange’s extradition, essentially telling the US what assurances it must provide to ensure the court would rule against Assange.
But the US couldn’t satisfy even that low bar. In the latest ruling, two justices of the high court said they weren’t convinced that the first amendment would protect Assange at trial.
That was the right decision. The “assurances” provided by the US that Assange could “raise and seek to rely upon” the first amendment at trial were meaningless “weasel words”. A defendant can raise pretty much any argument in a criminal case – but that doesn’t mean prosecutors won’t contest it and courts won’t reject it.
The US also refused to commit to refrain from arguing that foreign nationals like Assange don’t have first amendment rights. In fact, the lead prosecutor in the Assange case has suggested they don’t. It’s alarming that the US government – which just passed legislation to censor foreign media under the guise of banning TikTok – is willing to set a precedent that could mean that the Guardian or Der Spiegel aren’t protected by the first amendment.
It’s also painfully ironic that a UK court must defend the first amendment against US overreach. Not so long ago, the roles were reversed. In 2010, the US passed a law to protect American publishers from UK courts. The Speech Act, enacted in response to a wave of libel lawsuits in the UK targeting Americans, prohibits American courts from enforcing foreign defamation judgments that don’t comply with the first amendment.
But much has changed since 2010. Since then, the US has repeatedly dropped in Reporters Without Borders’ World Press Freedom Index, falling to 55th out of 180 countries in 2024. The UK is still no haven for free expression, but the same judiciary that the US Congress checked in 2010 now isn’t comfortable extraditing a publisher to be tried there. Other countries, like Australia, also rightly scold the US when it comes to press freedom.
Americans have also since elected a president – and are on the cusp of electing him again – who calls reporters the enemies of the people and gleefully threatens to imprison them for publishing leaks. It was Donald Trump’s administration that brought the indictment against Assange, the first time a publisher has been charged under the Espionage Act. Trump doesn’t care much about setting precedents that harm the press, but Joe Biden should have long ago recognized the risk that this case poses to national security journalism and dropped it.
Barack Obama abused the Espionage Act to go after whistleblowers, but at least he recognized the “New York Times problem” – that any legal theory it could come up with to prosecute Assange could also be used against the Times. That’s because the conduct Assange stands accused of – obtaining national defense information from a source, communicating with a source to encourage them to provide more information, and then publishing it – is what journalists do every day.
But the Biden administration continued the prosecution, and there’s little doubt its prosecutors would zealously argue against Assange’s first amendment rights. In past Espionage Act prosecutions of whistleblowers such as Daniel Ellsberg and Manning, American courts have refused to allow defendants to argue that their disclosures were in the public interest or protected by the constitution. Prosecutors make no distinction between spying for a foreign enemy versus exposing war crimes that the government concealed from the public.
Prosecutors have said they wouldn’t indict “conventional” journalists if given the power to do so. But this reassurance is hollow. One, it’s dangerous to let the government base its prosecutorial decisions on its interpretations of journalistic ethics. Two, there is no reason to believe the government.
While Assange’s case is the first time the US has brought an Espionage Act prosecution against a publisher, Richard Nixon tried to indict the New York Times and the reporter Neil Sheehan with the same charge Assange faces today – conspiracy to commit espionage – based on their publication of the Pentagon papers. Presidents Ford, Reagan and George W Bush also threatened to use the Espionage Act against conventional journalists. Biden may not intend to prosecute the Times, but he can’t speak for his successors.
There is, however, a way out of this quagmire. There have been reports that Biden’s administration is considering dropping the case against Assange and letting him return to his native Australia.
Ending the prosecution before Assange can be extradited would go a long way toward repairing America’s reputation as a protector of press freedom. Even more importantly, it would avoid creating a precedent that could be used against future journalists that publish government secrets.
The high court’s decision should be a wake-up call for Biden: it’s not possible to prosecute Assange while claiming to be a friend of press freedom. Rather than wait for UK courts to defend the rights that America supposedly stands for, the US should drop the case now.
